by: Eric Donato, Executive Editor
Google and Yahoo, titans of the internet search engine and email industries, have recently been sued in federal court for violating federal wiretap laws. Complaints filed in the U.S. District Court for the Northern District of California allege that the businesses broke the law by scanning their users’ email accounts for the purpose of engaging in targeted advertising. The October 2 class-action lawsuit against Yahoo, brought on behalf of the residents of San Bruno, California, was filed less than a week after a similar complaint against Google survived a motion to dismiss in the same court.
You can find Google’s motion to dismiss here, and the district court’s opinion here.
Yahoo and Google use automated programs to “read” the content of incoming and outgoing email messages on their users’ accounts. That information is scanned for recurring words that relate to marketable products and services. Yahoo or Google sends that information to advertisers, who then work with the email company to place ads in individual email users’ accounts.
A person who sends or receives lots of emails about “drums,” for instance, will see ads in Gmail about purchasing drums or taking drum lessons.
The fact that Google and Yahoo engage in this practice is no secret; it is spelled out in the privacy policies of their email services, to which subscribers must consent if they want to open an account. Professor Jacob Rooksby, an expert in Intellectual Property law at the Duquesne University School of Law, acknowledged that charging email companies with violations of the Wiretap Act “has some rhetorical appeal, but I think that [those companies’] terms of service…should pretty much overcome that argument.”
By opening an email account with Google or Yahoo, “you’re pretty much agreeing to them looking at your email, essentially, and mining it for their own purposes. That’s why you have advertisements come up in Gmail that seem to have great relevance to you,” Prof. Rooksby said.
“If you don’t want that, don’t sign up for it,” said Prof. Rooksby.
The Wiretap Act, which forms the basis of the lawsuits against Yahoo and Google, prohibits the “interception” of electronic communications.
Prof. Rooksby said the outcome of the litigation likely hinged on the court’s interpretation of the word “interception,” but expressed serious doubt about the plaintiffs’ likelihood of success.
“Given the current composition of the Supreme Court, if it goes that far, and their view on…contracting…I don’t think there’s enough freewheeling privacy advocates to rule in their favor,” said Prof. Rooksby.
Google and Yahoo permit their users to opt out of the targeted advertising feature. Even when opted out, however, complaints against the companies allege that emails are still read by software in order to create “user profiles” of subscribers for the companies’ pecuniary benefit.
The complaints against Google and Yahoo also allege that those companies violated the Wiretap Act when their software “read” emails sent by people who had not agreed to the privacy policies of the email services in question. For example, where a Hotmail user sends an email to a Gmail account, the Hotmail user’s email is “read” by Google software despite the fact that the Hotmail user has not consented to Gmail’s privacy policy.
Prof. Rooksby suggested he was unconvinced that the distinction was material to the litigation.
“I think that there’s really…norms building up that there is no reasonable expectation of privacy in email that you send or receive,” said Prof. Rooksby.
Prof. Rooksby explained that when a person communicates online “it’s not speaking in isolation.”
“You’re a part of a virtual online world,” said Prof. Rooksby, “and that world is in many ways akin to going out on the street and you and I having a conversation and it not being reasonable for me to expect privacy in what we’re saying…somebody walks by and hears, they can do that.”
Yahoo’s terms of service note that if its email-scanning feature is enabled and a user communicates with non-Yahoo users, then “you are responsible for notifying those users about this feature.” What significance that clause will have in the unfolding legal action remains to be seen.
Google spokeswoman Nadja Blagojevic responded to an inquiry about the denial of her company’s motion to dismiss with an email reading “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.”
Yahoo refused to comment on its ongoing litigation.
