Google fights to kill email-scanning lawsuit brought by Gmail users

Google lawyers are in court today arguing to dismiss a lawsuit that would stop the company from scanning Gmail users' email messages for advertising purposes.

A motion hearing in U.S. District Court in San Jose, Calif. is set for 4:30 p.m. ET today when the company's attorneys plan to ask the court to dismiss the class-action lawsuit. The suit was initially filed in May.

Google declined to comment on today's hearing.

The lawsuit contends that Google's automated scanning of emails in the company's free, cloud-based Gmail service violates the Federal Wiretap Act and the California Invasion of Privacy Act.

"This case involves plaintiffs' effort to criminalize ordinary business practices that have been part of Google's free Gmail service since it was introduced nearly a decade ago," Google lawyers said in a motion ( download PDF) filed with the court. "While Plaintiffs go to great lengths to portray Google in a sinister light, the complaint actually confirms that the automated processes at issue are Google's ordinary business practices implemented as part of providing the free Gmail service to the public. This is fatal to Plaintiffs' claims."

Google doesn't have a roomful of employees sitting at desks reading personal Gmail messages. What the company does have is an automated delivery process that scans incoming emails for spam, viruses and keywords that help it target advertising to users.

That filtering process is laid out in Gmail's privacy policy. "We also use this information to offer you tailored content -- like giving you more relevant search results and ads," the company states under the heading "How we use information we collect" in its privacy policy.

Dan Olds, an analyst for The Gabriel Consulting Group, said it comes down to nave users expecting to get something for nothing. As long as Google spells out the terms of use, then it's up to the user to decide whether they want to use that service.

"I think most, if not all, Gmail users have been creeped out by seeing ads next to their inbox that directly relate to the content of their emails," Olds said. "However, Google is providing a free service in a market with lots of alternatives. There's a truism in the industry that goes along the lines of, "If you're not paying for a product, you are the product." In the case of Gmail, user emails and eyeballs are the product that Google is using to increase advertising effectiveness."

In exchange for that, users get free email, he noted.

Google's lawyers, writing in a court motion, make the same point.

"All Plaintiffs, who are Gmail users, consented to the automated scanning of their emails (including for purposes of delivering targeted advertising) in exchange for using the Gmail service, thus precluding any claim under federal law," they wrote. "Moreover, multiple courts have held that all email senders impliedly consent to the processing of their emails by virtue of the fact that email cannot be sent or delivered without some form of electronic processing."

Last month, longtime Google critic Consumer Watchdog whipped up turmoil for Google when the privacy-focused group pointed to a legal argument Google attorneys had made about the class-action lawsuit.

"Just as a sender of a letter to a business colleague cannot be surprised that the recipient's assistant opens the letter, people who use Web-based email today cannot be surprised if their communications are processed by the recipient's ECS [electronic communications service] provider in the course of delivery," Google's attorneys wrote in a motion ( download PDF).

And then, quoting a 1979 case, Smith v. Maryland, they added, "Indeed, a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

When that comment became public, it unleashed an online firestorm about Google's privacy policies and a debate about whether people should expect privacy in their personal or business emails.

Sharon Gaudin covers the Internet and Web 2.0, emerging technologies, and desktop and laptop chips for Computerworld. Follow Sharon on Twitter at @sgaudin, on Google+ or subscribe to Sharon's RSS feed. Her email address is sgaudin@computerworld.com.

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