Nine litigants, both Gmail and non Gmail users, claim that Google breaks several different laws when it scans emails for keywords. Google claims this is a normal and accepted part of its business, necessary to deliver its services, and that Gmail users give consent by using Gmail, and non-Gmail users give implied consent when they send a mail to a Gmail address.
Judge Koh has not accepted these arguments. In a 43 page ruling delivered last Thursday she denied Google's motion to dismiss, allowing the action to proceed. She rejected Google's argument that the scanning falls within an exception to the Wiretap Act that would allow scanning as part of the ordinary course of Google's business, saying this would only apply if it were "an instrumental part" of the transmission of an email.
She also rejects both the actual and implied consent argument: "The Court rejects Google's contentions with respect to both explicit and implied consent. Rather, the Court finds that it cannot conclude that any party — Gmail users or non-Gmail users — has consented to Google's reading of email for the purposes of creating user profiles or providing targeted advertising." This echoes the general position taken by the EU's Article 29 Working Party of data protection authorities, including the UK's Information Commissioner, over Google's consolidated privacy policy.
The case became infamous last month when Google filed its motion to dismiss the action and included the nuclear defense: “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” This is a verbatim quote from the 1979 Smith vs Maryland court case, and is effectively one of the few arguments that Google won.
"Unlike phone conversations," said the judge, "email services are by their very nature recorded on the computer of at least the recipient, who may then easily transmit the communication to anyone else who has access to the internet or print the communications. Thus, Plaintiffs have not plausibly alleged that they had an objectively reasonable expectation that their email communications were 'confidential.'"
"We're disappointed in this decision and are considering our options," said a Google spokesman in an email. "Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority Inbox.” The bottom line, however, is that as far as judge Lucy Koh is concerned, this case can proceed to trial.