Last week, Judge Koh handed down a significant decision about the legality of e-mail scanning in the case of In Re: Google, Inc Gmail Litigation. In this class action, a class of Gmail users and people who sent e-mail to Gmail users complain that their e-mails were unlawfully wiretapped in violation of the Federal Wiretap Act as well as state wiretapping laws. This post will focus on a key part of the ruling and explain why I think it’s wrong.
Specifically, Judge Koh denied Google’s motion to dismiss the claims under the Federal Wiretap Act on the ground that there was insufficient evidence of consent from Gmail’s terms of service. According to Judge Koh, the TOS didn’t make clear that Gmail was going to scan in order to create user profiles or provide targeted advertisements. As a result, the notice under the TOS didn’t generate consent for purposes of the Wiretap Act:
Google points to its Terms of Service and Privacy Policies, to which all Gmail and Google Apps users agreed, to contend that these users explicitly consented to the interceptions at issue. The Court finds, however, that those policies did not explicitly notify Plaintiffs that Google would intercept users’ emails for the purposes of creating user profiles or providing targeted advertising.
. . . The Court finds that Gmail users’ acceptance of these statements does not establish explicit consent. Section 8 of the Terms of Service suggests that content may be intercepted under a different set of circumstances for a different purpose — to exclude objectionable content, such as sexual material. This does not suggest to the user that Google would intercept emails for the purposes of creating user profiles or providing targeted advertising. Watkins, 704 F.2d at 582 (“[C]onsent within the meaning of section 2511(2)(d) is not