Federal Judge Says Gmail Ads Might Be Wiretaps, Yahoo! Immediately Sued; Spam Filters, Webmail at Risk

by Ross Schulman on October 3, 2013

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.

That’s why it is important to keep in mind the clear exceptions for consent and for interception in the ordinary course of business that are in the Wiretap Act. Those exceptions make possible what the Gmail service does and indeed, permit the ad-revenue-based model of the Internet that has kept so many services free to use and enabled incredible innovation online. Sadly, Judge Koh looked at those exceptions and didn’t find them nearly as clear, and denied the motion to dismiss.

If curiosity overcomes you, you can check out a copy of the detailed opinion hosted over at Wired. Importantly, this isn’t the end of the road for the case. It just means that Google must go to trial. There are still arguments to be made and appeals to take on both sides, presuming some kind of settlement cannot be reached.

But we should take a moment here to reflect on the sort of atmosphere these sorts of rulings perpetuate. When pre-Internet rules get “adapted” to the new age through some sort of Frankenstein bolting-on process, we shouldn’t be surprised when they turn out to be not entirely suited to how we do things online today. Obviously nearly every person who uses Gmail must know that advertising is being served to them, and it isn’t that hard to determine that it’s related to the email you’re reading. You can either read the Privacy Policy or even just notice the connection between ads and emails fairly easily. If that isn’t to the user’s liking, opting out is as easy as taking their data and finding one of the million other webmail services that are more suited to their needs.

But what this ruling is telling people is that even if you read the terms of service, and even if you’re absolutely fine with allowing Google to have a computer scan your email and match up keywords, we’re not going to let you do that. This ruling says that the only viable business model on the Internet is pay-for-service which experience has shown us nearly every user is not interested in. It doesn’t seem like that’s a decision a court should be making for us.

  • hanspy

    Yippeee. Nobody exept the reciever is alowed to look at my mail.POINT.And scanning for adds is the lowest,meanest form of spying.

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