Nothing Comes for Free: Google Gmail Lawsuit Questions if Privacy is the Price for Free Service

September 10, 2013

Tuesday, September 10, 2013, by Keta Desai
To add to several other previous lawsuits for e-mail-related privacy violations, technology giant Google has now been sued in a class-action suit alleging that the company is violating the Federal Wiretap Act and the California Invasion of Privacy Act. The lawsuit contends that through its practice of automated scanning not only the messages belonging to users of the G-mail e-mail service, but also those from non-Gmail users to G-mail users. By using the automated scanning function, the plaintiff alleges that the company unlawfully “reads, and acquires the content of people’s private e-mail messages.” The plaintiffs argue that the injury of this violation is not only the privacy invasion which occurs through the e-mail scanning, but also the loss of property. Google has had a long-standing history of scanning the emails of Gmail users for the purpose of advertising, stating that it uses words that are often displayed in a user’s e-mail messages to help target advertisements. Judge Koch, who will decide on Google’s motion to dismiss, expressed questions regarding the lack of specific reference to e-mail content in its privacy policy. Google’s attorney, Whitty Somvichian, reasoned that the company did not separately reference each product and service in attempts to utilize a single privacy policy for all of them.

“[A]ll users of email must necessarily expect that their emails will be subject to automated processing.”

Google has gone to court to argue for dismissal of the lawsuit by arguing that the e-mail scanning feature was solely for advertisement purposes and that the scanning is a part of its ordinary course of business which was implemented as a means of providing the G-mail services to users without any charges.  A central point which Google’s defense argued in its motion was that the claim was precluded under federal law because by utilizing the free Gmail services, Gmail users consented to the scanning of their e-mails, essentially claiming that “all users of email must necessarily expect that their emails will be subject to automated processing.” Google also claims that the entire process of e-mail scanning is fully automated and that accordingly, no humans are actually reading users’ emails. Though this argument attempts to convey that the scanning employs minimal intrusion, many are still concerned with the risk that the information collected by this method could end up being used for purposes beyond targeted advertisements.
In its defense, Google most specifically quoted the 1979 Smith v. Maryland case to make to further its argument – that “…a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” This argument has sparked widespread controversy and criticism in response as many have interpreted it to mean that Google believes that its technology is not subject privacy laws. Privacy interest groups believe that the results of this case could mark the beginning of a slippery slope which would allow technology powerhouses to continue pushing the extent to which they find privacy laws are applicable to their activities.