A warning for everyone: Advertising-supported webmail all over the world will be shutting down in the not too distant future. Since pretty much every single person I know has a webmail account of some kind, I feel like this will be relevant news for pretty much all of our readers.
Ok, so it’s not actually 100% certain that ad supported webmail is shutting down, but that certainly seems to be what some consumer groups and the courts are aiming for given a recent court opinion. A federal court in California ruled that a computer scanning the text of an email was committing a wiretap under the law. If scanning text is a wiretap, say goodbye to the advertising-supported model of the web — which has led to such unprecedented innovation — or even spam filters for that matter.
Last Thursday, Judge Lucy Koh denied a motion to dismiss filed by Google in a case that alleges that because Gmail scans emails in order to serve advertisements, that they are in violation of the Wiretap Act. That holding ushered in a follow-on suit against Yahoo! yesterday, Kevranian v. Yahoo! Inc., making similar allegations. Suits against other online services may follow.
The Wiretap Act, by the way, is a close cousin of the Electronic Communications Privacy Act (ECPA), which the Digital Due Process Coalition has been working on a legislative fix for. The Wiretap Act generally prohibits intercepting “wire, oral, or electronic communications” by anyone, although it is often invoked to prohibit the government from listening in without a warrant.
But the Wiretap Act isn’t about just the phone lines anymore, like it was when it was first written in 1968 (though it has been amended many times since then). It applies to the online world too, where data packets moving over the Internet are routinely inspected for completely legitimate reasons such as routing, combating fraud, spam, and cyber attacks, and advertising. However, Nobody thinks that Nigerian princes looking to move large sums of money should be able to complain about the “wiretapping” that shunts their pleas into a spam box. That isn’t to say that the Wiretap Act doesn’t provide some important protections, but that we have to think carefully about how its provisions apply in the 21st Century.