Google Facing Court Date Over Email Scanning

Google has denied claims that its practice of scanning Gmail messages for advertising purposes breaches wiretap laws. But a judge says there may be a case to answer, particularly when it comes to scanning messages sent by non-Gmail users.

Although Gmail is free to use, Google makes money by putting adverts at the top of the inbox and beside messages.

These ads are usually based on topics that are mentioned in messages -- the theory being that somebody who reads and writes a lot of messages about golf may be more likely to click on an ad for a golf supplies store.

Google repeatedly notes that, although it uses automated systems to scan message content, no human ever reads emails as part of the advertising program.

It remains a controversial issue, however, particularly as Microsoft -- which doesn't use such as system -- has accused Google of unreasonable behavior.

Google Accused Of Unlawful 'Wiretapping'

Nine different people have now joined forces in a lawsuit against Google over the policy. They argue that scanning messages is unlawful and that by "reading" private communications Google violates federal wiretap laws.

Experts now say the trial could be granted class-action status, meaning thousands or even millions of users could potentially benefit from any damages awarded (though on such a scale individual payouts are likely to be tiny).

Google had asked for the case to be thrown out after arguing that the scanning isn't secret and that its terms and conditions make it clear emails will be used to generate targeted ads.

Judge Says Terms and Conditions Aren't Clear-Cut

Judge Lucy Koh says that isn't necessarily the case. In dismissing Google's request, she wrote that, "Nothing in the policies suggests that Google intercepts email communication in transit between users, and in fact, the policies obscure Google's intent to engage in such interceptions." (Source: reuters.com)

Koh also noted that Google didn't make it clear that it stores details intercepted about users to build up a pattern for advertising, rather than each ad being targeted solely to the particular message that it appears beside. (Source: arstechnica.com)

This doesn't necessarily mean Google will lose the case. It may be able to argue that even if users aren't aware of it, the scanning itself is legally justified as part of providing the free service.

The key to the case could be that the scanning affects incoming messages from people who don't use Gmail and thus haven't signed up to any terms and conditions.

Google will argue that because the scanning program is not secret, such users give "implied consent" for their message to be scanned.

However, Koh has already suggested that such a theory might not fly in court.