A California judge this week rejected Google’s request to dismiss a class-action case that accuses the search giant of violating federal and state wiretap laws via a program in Gmail that scans emails to serve up targeted ads.
Google argued that “just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use Web-based email today cannot be surprised if their communications are processed by the recipient’s ECS [electronic communications service] provider in the course of delivery.”
But Judge Lucy Koh found that the scanning of emails is not considered an “instrumental part of the transmission of email.”
“Google’s alleged interceptions are neither instrumental to the provision of email services, nor are they an incidental effect of providing these services,” she wrote. “The Court therefore finds that Plaintiffs have plausibly alleged that the interceptions fall outside Google’s ordinary course of business.”
“In fact, Google’s alleged interception of email content is primarily used to create user profiles and to provide targeted advertising — neither of which is related to the transmission of emails,” the judge said.
Ad-related email scanning within Gmail is nothing new; it dates back to at least 2004, and has encountered a number of challenges along the way. Google has long held that the scanning is done via an algorithm and no humans at Google are reading peoples’ emails.
In requesting a dismissal, Google argued that “all users of email must necessarily expect that their emails will be subject to automated processing,” but Judge Koh was not convinced. Nothing in Google’s terms of service “suggests that Google intercepts email communication in transit between users, and in fact, the policies obscure Google’s intent to engage in such interceptions,” she concluded.
In a statement, a Google spokeswoman said today that “we’re disappointed in this decision and are considering our options. Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority Inbox.”
This case combines five lawsuits that were filed in California, Illinois, Maryland, and Pennsylvania. Judge Koh and the California district court took over earlier this year.