According to the Wiretap Act, it is illegal to

• Intentionally, or purposefully,
• Intercept, disclose, or use the contents of
  1. Any wire, oral, or electronic communication
  2. Through the use of a “device”

Taken at face value, that would mean Google is breaking the law when their computers scan Gmail messages in order to target ads to consumers. But Google says there’s an exception to the rule that applies. The Electronic Communications Privacy Act (ECPA), allows employers to monitor employee email in the ordinary course of business. Google claims that scanning email is just part of their business but a judge says no way.

U.S. District Judge Lucy Koh threw out Google’s request to dismiss the charges saying,

“The statute explicitly limits the use of service observing or random monitoring by electronic communication service providers to mechanical and service quality control checks. Accordingly, the statutory scheme suggests that Congress did not intend to allow electronic communication service providers unlimited leeway to engage in any interception that would benefit their business models, as Google contends. In fact, this statutory provision would be superfluous if the ordinary course of business exception were as broad as Google suggests.”

That’s legalese for, ‘how stupid do you think people are?’

Google’s second pitch falls under the concept of, ‘that’s what you get with free email.’ They claim that by signing up to use Gmail and accepting the terms of service, consumers have agreed to let Google scan their mail.

Again, the judge says no, stating that Google’s own data mining policy doesn’t include Gmail.

“These new policies do not specifically mention the content of users’ emails to each other or to or from non-users; these new policies are not broad enough to encompass such interceptions. Furthermore, the policies do not put users on notice that their emails are intercepted to create user profiles. The court therefore finds that a reasonable Gmail user who read the privacy policies would not have necessarily understood that her emails were being intercepted to create user profiles or to provide targeted advertisements. Accordingly, the court finds that it cannot conclude at this phase that the new policies demonstrate that Gmail user Plaintiffs consented to the interceptions.”

Consumer Watchdog calls the ruling a key consumer victory.

“This is a historic step for holding Internet communications subject to the same privacy laws that exist in the rest of society. The court rightly rejected Google’s tortured logic that you have to accept intrusions of privacy if you want to send email.”

Google is also battling wiretapping charges on a second front thanks to the accidental interception of neighborhood Wi-Fi signals by Street Mapping cars. They’re losing that fight as well.

As for the Gmail case, the judge gave Google 21 days to come back with a better defense or they’re going to trial.

What do you think? Legality aside, should Google continue scanning Gmail messages for advertising purposes or not?