Google Gmail ‘Wiretapping’ Privacy Case Given Green Light

Tom Brewster is TechWeek Europe's Security Correspondent. He has also been named BT Information Security Journalist of the Year in 2012 and 2013.

Judge says non-Gmail users are not providing consent and Google’s privacy policies are confusing

Google is to be taken to court in the US over claims it broke wiretapping laws by scanning people’s emails to pick up on keywords that feed its advertising algorithms for Gmail users.

In a class action lawsuit, lawyers representing non-Gmail users argued the defendants never agreed to having their emails scanned. They said this violated anti-wiretapping and privacy laws, and Judge Lucy Koh agreed a case should be heard, throwing out Google’s attempt to have it dismissed.

Google MailGoogle Gmail privacy problems

Koh said the plaintiffs had never agreed to have their emails scanned and had not consented to it either, as they were using other email services.

Google had argued non-Gmail users had given “implied consent” to its terms, and they accept that machines will read their messages, whether for advertising purposes, to check for spam or for other reasons.

Koh was not on Google’s side, however. “Google’s alleged interceptions are neither instrumental to the provision of email services, nor are they an incidental effect of providing these services,” Koh wrote.

“The Court therefore finds that plaintiffs have plausibly alleged that the interceptions fall outside Google’s ordinary course of business.

“The Court finds that Gmail users’ acceptance of these statements does not establish explicit consent.”

Koh also had criticisms for Google’s privacy policies, which have caused a furore in Europe. “Nothing in the policies suggests that Google intercepts email communication in transit between users, and in fact, the policies obscure Google’s intent to engage in such interceptions.

“This could mislead users into believing that user communications to each other or to nonusers were not intercepted and used to target advertising or create user profiles.

“As such, these privacy policies do not demonstrate explicit consent, and in fact suggest the opposite.”

Microsoft will no doubt be delighted by Koh’s words, given it has been running an advertising campaign based on alleged Google privacy infringements, known as “Scroogling”.

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