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Google's Scanning of Gmail To Deliver Ads May Violate Federal Wiretap Laws
New submitter SpacemanukBEJY.53u writes "In a declaration that could make Google very nervous, a U.S. federal judge on Thursday rebuffed Google's defense of its targeted ad system that scans the content of Gmail. Judge Lucy Koh — who also heard the Apple-Samsung case — found Google's terms and conditions and privacy policy isn't clear to users. Koh subsequently allowed a class-action suit to proceed against the company (official ruling). The plaintiffs in the suit allege Google violates federal and state wiretap laws by scannning the messages sent by non-Gmail and Gmail users."
Will this shit die already, this is getting tiring.
It is an automatic system.
I bet Microsoft is funding this, AGAIN.
...she was(is?) the ringmaster for the Apple Samsung patent battle.
Personally if I wanted a decent tech judgement I'd move heaven and earth to end up before Judge Alsup (Oracle v Android)
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
Somehow I doubt "federal wiretapping laws" take into account how much the person being tapped does or does not enjoy the results.
THL phish sticks
Google isn't the only one that reads your mail.
If you have a Kindle Fire or Fire HD they are reading it too. I had the upsetting experience of reading an email on my Kindle Fire HD that announced my father's death and then not more than a few hours later was served a "recommendation" on my Kindle a book on how to write a Eulogy.
I deleted my email account information from the kindle and shut down the recommendation system on the device... and I told Amazon how creepy they were... At least Google hasn't served creepy ads like that... so far...
Maybe Amazon should learn from Google and adopt "Don't Be Creepy" as their motto. Are you listening, Mr. Bezos?
[By the way I tried at the time to put Amazon's actions up as a news story on Slashdot... but it was not picked up as a story...]
The same scrutiny would get applied to NSA's escapades but they get a free ride on everything.
Virus scanning is a service a provider can deliver to its customers.
Scanning mails for the benefit of the provider for advertising is not beneficial to the customer.
...except in so far as it allows the service provider to make a profit thereby enabling the customer to get access to the service for free.
I wish I were as sure of anything as some people are of everything
The judge mentions this in her ruling:
...generating user profiles or to provide targeted advertisements.
Spam filters and mail virus scanners don't do that.
I'm a long-time Google Apps user, and my company's domain is on all mail receipents' mail, not "gmail.com". So how can you have implied consent when the sender doesn't know that the mail is being sent through Google?
Yes, you and I are not allowed to listen in and record the feds.
“He’s not deformed, he’s just drunk!”
too %%#&^# LAZY...can't even deliver the mail
As I understand it, that's actually a key part of Judge Koh's ruling: The *sender* of the email doesn't know that their email will be scanned for profit, only the receiver. And it's the sender's communication that's being wiretapped.
The sender "can't take their custom elsewhere".
Google has been 100% up-front, since the day they announced the product, that they were going to pay for GMail by scanning your mail messages and guessing at relevant ads. They have made utterly no effort whatsoever to hide or obfuscate this fact.
Right cos those were soooooo effective at stopping anyone like the NSA tapping every wire ever. Or is this one of these things where it's ok if a government organisation does it, like how the US army can't commit terrorism because they are the "good guys"?
There are some pretty interesting points raised in the case that I think should be addressed. I'm on google's side, the service that google provides me is worth their database about my habits. That's my choice and I knew it going in, even Microsoft advertises that Google does this. But privacy policies, EULAs and such have become stupidly complex. An average user can't be expected to read those tedious documents and I doubt if more then 1% fully read any of the contracts they click to accept. FTFA: "that a reasonable Gmail user who read the Privacy Policies would not have necessarily understood that her emails...". I can see this as a way to require human readable EULAs and privacy policies instead of the pages and pages of legalese that currently exist.
There's also the question of who "owns" the data in an email. If someone sends me an email, do they still own it and am I restricted in how I handle that email according to their wishes? Should they be informed that I'm saving the email on a server or that I've printed out a copy or that I run it through a spam filter? Most engineers would agree that I can do whatever I want to the email as that copy of the data is mine to use as I wish but IP lawyers can argue that I don't have the intellectual property rights to use the data except by whatever rights the owner has granted me.
I'm really hoping that this case can be appealed and finally set some precedence to some of the crazy shenanigans.
If the court decides that mail providers cannot, on principle, be allowed to scan the content of a mail message then I don't see why it wouldn't affect content based spam filtering.
This case could have interesting ramifications for all mail providers if the court decides this violates wire-tap laws.
Paul Leader
>The plaintiffs in the suit allege Google violates federal and state wiretap laws by scannning the messages sent by non-Gmail and Gmail users."
The ECPA says that email is different and that only watching the live transmission outside the normal checking of function of the email system by a person when not otherwise disclaimed by the privacy policy is the equivalent of a wiretap.
That's because email is a store and forward communication, not the equivalent of a phone call.
When the ECPA was written, it had to be written in a way that prevented turning all operators into felons when they weren't deliberately spying on their users. This is the "hole" (it's not really) that Google is using to justify the machine reading of email, if it's spelled out.
I have read the Gmail privacy statement. To me it covers their ass in this regard. The Gmail privacy statement applies just as much to incoming mail as it does to outgoing. But even if it doesn't, when you send email, unless it's encrypted, it's the equivalent of a postcard. Are we going to be throwing meatspace postal workers into jail when they read the text next to the address on a postcard? That would be insane and unrealistic expectation of privacy, wouldn't it? That's not just my opinion, it's the opinion of everyone who knows anything about email. It's not a new concept, either. It's been expressed in books like my copy of the first edition of "Navigating The Internet" where the author introduced this "new thing" called the "web."
Calling this wiretapping and removing the safe-harbor sets a dangerous precedent and will turn all operators into felons.
While there is the desire to have complete privacy when it comes to email, unencrypted transmission and text negate any realistic expectation of privacy. Privacy starts with the user and ends with the user. If you don't want people reading your stuff (besides the fuckin' NSA spit), take measures to keep them from reading it. Instead of sending plain text on the postcard, encrypt the text with your (figurative) Ovaltine Decoder Ring and get your friends to use their decoder rings.
http://www.youtube.com/watch?v=zdA__2tKoIU
There is a crying need for transparent encryption methods in communication software, and it boggles my mind that this hasn't happened yet.
--
BMO - Drink more Ovaltine.
Probably the NSA. Not directly, but this is the push back to all of the bad press they have been getting since the Snowden leaks. Hold Google and other service providers feet to the fire and they'll go to Congress begging to have the laws relaxed.
Oh, and once you've got your relaxed laws, Google, you'll be happy to share all that scraped data with us, right?
Have gnu, will travel.
What's the relationship between (a) wiretap laws, and (b) the reasonable expectation of privacy?
Because if the NSA didn't need a court order to obtain my emails from Google, do the same factors imply Google had a right to scan those same emails?
Or are different legal issues at play in those two cases?
Either by regulation or agreement, if the scanner comes across the string "[DO NOT TRACK]" anywhere in the mail, scanning should stop and that data should be discarded... That would be the non-evil way to prevent unconsenting 3rd parties from being tracked.
For the VAST majority of all Gmail users, that has been the known deal since they started.
It was free email, with automated targeted advertisement. This isn't news to any of us who remember when Gmail was a new thing.
It is THEIR free system, and people are free to chose another provider.
Do you think that server farms, huge pipes, high-end sysadmins, and high-end developers are free? For the purposes of free Gmail, as was ALWAYS a part of the deal, their targeted ads ARE just as necessary as parsing envelope headers.
THL phish sticks
This is part of a class-action lawsuit that was initiated by a group of private citizens, not a government entity.
Nobody is going to shut Google down. At worst, they have to pay a relatively small fee and send out a revised Privacy Notice that outlines their data collection methods more explicitly.
No, it is not a theory. Theories are based on evidence and the only thing you've spouted is pure conjecture.
And as many others have pointed out, the judge's logic is flawed as it would also outlaw the use of secretaries and interns reading mail (electronic or otherwise) for executives, politicians and, most likely, Judge Koh himself. Once you send correspondence to someone then they are free to do what they want with that correspondence including having others scan it for content. Granted, sometimes they are limited by confidentiality but then they wouldn't be soliciting that correspondence to be sent via unencrypted email.
If a gmail user has given permission to Google to scan the user's email for the purpose of giving the gmail user targeted ads is in violation of wiretapping laws, then the judge or his interns and secretaries are also in violation of similar laws regarding the US Mail. Also, email is the modern equivalent of the US Mail*, not the phone system so it shouldn't really be subject to wiretapping laws in the first place. it should be subject to the laws that cover the US Mail*.
*Substitute your local government Postal Authority if not in the US.