Google – Say What You Mean

A ruling in a complicated class action may carry with it a very simple lesson for the search engine Google. And the lesson? If you plan to mess with users’ privacy you better spell out your plans very clearly. 

Google is the defendant in a “putative” class action in a case pending in the Northern District of California (“putative” means the court hasn’t decided whether the case will proceed as a class action yet). The plaintiffs contend that Google “has intercepted, read, and acquired the contents of emails that were sent or received by Gmail users while the emails were in transit.” Google’s purpose apparently was to use the content to develop targeted advertising to the senders and recipients. 

Google asked the court to dismiss the complaint for a number of reasons, including provisions in Google’s privacy policy that told users what Google was up to. Google argued that by using Gmail, the subscribers consented to Google’s practice. But the problem with this argument, according to the court, was that Google didn’t say what its practice was exactly.

The court looked at Section 8 of Google’s Privacy Policy, which says: “Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.” It also looked at Section 17, which provides: “advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.”

According to the court, Section 8 allows Google to remove objectionable material; it says nothing about intercepting e-mails for targeted advertising. And the court found that Section 17 only demonstrated Google’s capacity to intercept communications, not that it would. 

The point here is that courts tend to be wary of practices that appear to intrude on privacy interests. So if you intend to look at a user’s (or an employee’s) e-mail, you better spell out your intentions in crystal clear language.