Judge refuses to throw out Google email scanning lawsuit

For the second time this month, a federal judge has refused to dismiss a case accusing the tech giant of potentially violating wiretap laws to target advertisements through email scanning.

credit brian turner
Credit: Brian Turner

On Thursday, a federal judge refused to throw out a lawsuit which alleges Google's email scanning practices break federal wiretap laws -- for the second time this month.

U.S. District Judge Lucy Koh said in a 43-page ruling that users can sue the firm in a proposed class-action suit for scanning their Gmail email accounts, which is allegedly used to create targeted advertisements and profile users by "reading" emails, as reported by The Wall Street Journal.

The tech giant insists the scans are automated and no human operator views the results or contents of individual emails. In August, a motion filed by Google against the complaint said that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

In a statement, Google said it is "disappointed" with the ruling and is considering its options, commenting:

"Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority Inbox."

The ruling comes after Google was accused of violating the Federal Wiretap Act, which usually prevents the interception of "wire, oral, or electronic communications" unless a wiretap order -- similar to a warrant -- is granted to police officers. The Supreme Court has said that as wiretapping is a serious invasion of privacy, recording communications should only take place when investigating serious crimes. 

Google, seeking to have the alleged privacy breach case dismissed, argued that email scanning is an exception to this law, as it falls within ordinary business practices -- including the delivery of a message and allowing the service to function -- which makes the process legal. However, the Cupertino, Calif.- based judge said that this exception was only admissible if interceptions were "instrumental" to sending an email -- rather than used to target advertising and create user profiles.

"The statutory scheme suggests that Congress did not intend to allow electronic communication service providers unlimited leeway to engage in any interception that would benefit their business models, as Google contends. In fact, this statutory provision would be superfluous if the ordinary course of business exception were as broad as Google suggests," Koh wrote.

The federal judge also threw out the tech giant's claim that scanning was necessary if email services were to function. The firm argued that users who agree to the company's terms of service and privacy policies -- and non-Gmail users who received emails from a Gmail account -- gave implicit consent simply because of how email operates. Koh, however, could not find clear notifications in Google's terms of service which state that the firm would intercept communication to glean data for targeted advertising or the creation of user profiles.

The Gmail service has over 400 million users worldwide.

Koh said:

"Google further contends that because of the way that email operates, even non-Gmail users knew that their emails would be intercepted, and accordingly that non-Gmail users impliedly consented to the interception. Therefore, Google argues that in all communications, both parties -- regardless of whether they are Gmail users -- have consented to the reading of emails.

The Court rejects Google's contentions with respect to both explicit and implied consent. Rather, the Court finds that it cannot conclude that any party -- Gmail users or non-Gmail users -- has consented to Google's reading of email for the purposes of creating user profiles or providing targeted advertising.

Accepting Google's theory of implied consent -- that by merely sending emails to or receiving emails from a Gmail user, a non-Gmail user has consented to Google's interception of such emails for any purposes -- would eviscerate the rule against interception."

Google is not permitted to immediately appeal the decision to the 9th U.S. Circuit Court of Appeals. Instead, the company has to gain Koh's permission in an interim appeal.