Gmail Users and Email Spying
One of the dangers of constructivecontractual consent (a foundational principle of wrap contract doctrine) isthat it might be used to prove statutory consent and thereby strip unknowingconsumers of rights provided by law. Scholars such as Wayne Barnes and Woody Hartzog have argued that constructivecontractual consent can undermine privacy protections provided by federallaw. While there aren’t too many federal lawsprotecting consumer privacy, the ones that do exist generally provide that apractice is permissible if consumers consent. Google raised that very argument recently in its defense to a lawsuit that claimed thatGoogle’s practice of scanning users’ emails violated federal and statewiretapping laws.
The WiretapAct, as amended by the Electronic Communications Privacy Act, prohibits theinterception of “wire, oral, or electronic communications,” but it is notunlawful “where one of the parties to the communication has given prior consentto such interception.” Plaintiffs arguedthat Google violated the Wiretap Act when it intentionally intercepted thecontent of emails to create profiles of Gmail users and to provide targetedadvertising. One of Google’s contentionswas that Plaintiffs consented to any interception by agreeing to its Terms ofService and Privacy Policies. The courtstates:
“Specifically,Google contends that by agreeing to its Terms of Service and Privacy Policies,all Gmail users have consented to Google reading their emails.”
Yes, that’s right– Google isarguing that by agreeing to its Terms ofService and Privacy Policies, you – yes YOU Gmail user – have agreed to allowGoogle to read your email!
Even more alarming, Google claimsthat non-Gmail users who have not agreedto its Terms of Services or Privacy Policies have impliedly consented toGoogle’s interception when they send email to or receive email from Gmailusers.
Thankfully, Judge Lucy Koh isnobody’s fool. Without stepping into themuck and goo of wrap contract doctrine, she notes that the “critical questionwith respect to implied consent is whether the parties whose communicationswere intercepted had adequate notice of the interception.” Then she does something astounding ,admirable and all-too-rare – – she interprets adequate notice in a way thatactually makes sense to real people:
“That the person communicating knowsthat the interception has the capacity tomonitor the communication is insufficient to establish implied consent. Moreover, consent is not an all-or-nothingproposition.”
Even with respect to Gmail users,she notes that “those policies did not explicitly notify Plaintiffs that Googlewould intercept users’ emails for the purposes of creating user profiles orproviding targeted advertising.”
Judge Koh’s nuanced opinion revealsan understanding of online consent that’s based on reality. She notes that that “to the extent” that the userhas consented to the Terms of Service, it is “only for the purposes ofinterceptions to eliminate objectionable content,” not for targetedadvertisements or the creation of user profiles. She analyzes thecontract from the standpoint of a reasonable user, rather than blindlyfollowing the all-or-nothing-constructive consent model mindlessly adopted byProCD-lemming courts.
The opinion states that “it cannotconclude that any party – Gmail users or non-Gmail users- has consented toGoogle’s reading of email for the purposes of creating user profiles orproviding targeted advertising.” I thinkmost reasonable people – Gmail users and non-Gmail users alike – would agree.
[Nancy Kim]