« Desperate Times Call for Desperate Measures: Classic Westlaw Takes on Lexis Advance for Solos With a Curious Twist for a Long Neglected Market Niche | Main | Can (Does) the Roberts Court Say What It Means and Mean What SCOTUS Says? »
November 23, 2010
Google Sued Over Gmail Scanning
Google is a lawsuit magnet, of that there is no doubt. One of the more absurd suits sent its way concerns the automated process of scanning the content of mail to serve ads to Gmail users. The Register is reporting on Texas resident Keith Dunbar's suit about email he sent an from a non-Gmail account to a Gmail account holder. Google, as is well known, scans the content to deliver ads to the Gmail account holder on view of the message. This activity, he claims, violates federal wiretapping laws. As a non-Gmail user, he says, he has not consented to the scanning. He is seeking class action status, damages of $100 per day or $10,000, whichever is greater, and a disgorgement of profits as a result of the scanning. And lawyers wonder why they have reputation problems.
Google's immediate response to the concept of the suit is that Google, as most web email services, scan all messages on its servers for viruses and spam. Gmail doesn't violate privacy, Google says, because only the recipient gets to actually "see" the message. No humans are involved in the ad scanning and placement process. I wonder if Dunbar understands the concept that any email he sends to any webmail account holder is processed and scanned for one reason or another by the receiving servers? Cue lawyers rubbing their hands in glee at that nugget.
Most free webmail services include ads, the subject of which is not necessarily determined via content scanning. However, the subject may be determined by an individual's profile built up via tracking web behavior. Does that violate the law? Is it any more acceptable? Note that the Justice Department and the Federal Trade Commission have had six years to put an end to this practice and/or prosecute wiretap laws. Both have not acted. Then there's the question as to whether a Gmail recipient responds or forwards the message, does that make it okay?
If this suit is a trend, why should we stop with wiretapping and privacy laws? Let's invoke copyright as well. First of all, anyone who reads this owes me money. Anyone who ever gets an email from me should determine whether I have given permission to read it, and if I have, at what rate of payment. Any class action attorneys out there want to take up my cause? Another report on the suit is at Information Week.
Update: The complaint is available at Justia, with a hat tip to Gary Price for the link. Aside from the permission statements, one of the arguments for the wiretap claim is that scanning the emails is not a "necessary incident" to providing the email service (Paragraphs 81-84). Really? Google pretty much says up front that the scanning is what pays for the "free" service. I suppose someone is going to tell me that targeted advertising based on search is not incidental to delivering search results even though I engage that service. Whoops! Where's a lawyer when you need one. [MG]