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Gmail’s Targeted Advertising Accused of Being Wiretapping: Part 1

It has long been widely known that Google uses software that scans its users’ Gmail messages to generate targeted advertising. Recently, though, a lawsuit has been allowed to proceed in federal court in which the plaintiffs accuse Google of violating the Wiretap Act by scanning user emails. This controversy is nothing new for Google, which has faced numerous privacy challenges since launching Gmail in 2004. In the ongoing case, the plaintiffs base their complaint on the argument that Google’s email scanning violates the Wiretap Act, a federal law that prohibits the interception of wired and electronic communications in many circumstances. But Google argues that the law’s exceptions give the company a right to scan emails. First, Google points to the Wiretap Act’s consent clause:
2(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
As long as Gmail account holders have agreed to Google’s terms of service, and those terms specify that Google has the right to intercept users’ messages, then Google has their consent to intercept. Google does specify such interception practices in subparagraph 8.3 of its 2007 terms of service, which remained in force until March 2012:
8.3 Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service…
Google also explains how it uses the software for advertising:
17.1 Some of the Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
As Professor Orin Kerr recently explained, Gmail users were told the extent of the monitoring that would occur within the terms of service. The monitoring would only violate the terms if it were quantified; that is, if specific purposes for monitoring were given to users. Since Google explains that it will scan “written messages” and use this scanning for services related to advertising, the company is fully within its rights to use Gmail messages for targeted advertising. With a continually growing user base, though, challenges to the consent clause appear rather weak. Gmail has continued to grow since its introduction, claiming over 425 million users back in 2012, making Gmail the most widely used email service in the world. Claiming that Gmail attained this status without users’ consenting to email scanning, a widely known practice, is a big stretch on the plaintiffs’ part. If Google is unable to defend its own business model in this court case, a precedent will be set that could endanger the email service industry.