Jeb Molony

A Federal Lawsuit was not thrown out this week by a judge in San Jose, California that alleges Google violates Federal wiretapping laws in its processing of Google Mail (Gmail). The lawsuit alleges both Gmail users and non-users who sent mail to Gmail users did not consent to the processing procedures Google uses for advertising and profiling purposes. Google processes email for all of its Gmail users which requires some level of review and scanning in order to provide the service, but the issue is whether Gmail goes further than basic scanning for processing purposes and if so whether the users and non-users consented to the techniques.

When an email is sent from one user to another there is information in the email such as the To field which must be scanned and processed in order the email to reach the correct destination.

This level of scanning is standard on any email service and is typically fully automated in order to protect against potential human interaction. The lawsuit against Google alleges the company goes much further in its processing of email in particular the scanning of email content to discover keywords for advertising and profile building purposes. The exact techniques of Google's processing are redacted from the lawsuit, but those techniques are at the heart of the controversy.

Google users who sign up for the service are presented with a contract which they agree to in order to use the service and in this contract is the consent to the processing techniques used by Google including keyword mining. While users of Gmail approve the processing techniques the issue at the heart of the lawsuit is whether non-Gmail users who send email to Gmail users have consented to this same treatment of the content of their email. Google contends that in order to operate a modern email service such as Gmail it is necessary to processing, but others contend the same level of processing can be accomplished without the mining of content. According to the Judge in the case:

“The court finds that it cannot conclude that any party — Gmail users or non-Gmail users — has consented to Google’s reading of e-mail for the purposes of creating user profiles or providing targeted advertising,” Koh said in the ruling.

Google users and non-Google users alike have a stake in this lawsuit and the future of email processing. Most people never consider the email service the recipient of their messages may be using, and even fewer worry about how their email service may affect privacy. The effect on privacy may not have been an issue in the past and on a personal level may not make a difference to most people. However, for a professional practice with third party regulatory concerns Gmail may pose an issue with maintaining compliance.