Two US federal judges have ruled that both cases can move forward, but Google claims that the law is stuck in the past and has failed to keep up with new technologies. So far Google has managed to avoid major privacy penalties. The Gmail case could have broad effects and the fines could be enormous. Any ruling in the case could also have long-term consequences for web email services and for the issue of online data confidentiality.
The Gmail case involves Google's practice of automatically scanning email messages and showing ads based on the contents of the emails. The plaintiffs say the scanning of the messages violates US state and federal anti-wiretapping laws and it revives a short-lived uproar over Gmail ads when Google introduced them in 2004. According to court documents, the plantifs say that Google uses Gmail as its own secret data-mining machine, which intercepts, warehouses and uses, without consent, the private thoughts and ideas of millions of unsuspecting Americans who transmit email messages through Gmail.
In a section of the motion, Google also argued that non-Gmail users had no expectation of privacy when corresponding with Gmail users.
Federal wiretap law exempts interception of communication if it is necessary in a service provider's "ordinary course of business", which Google said included scanning email. Also last week, Google unsuccessfully asked the Court of Appeals for the 9th Circuit to reconsider a September 10 ruling that a separate wiretapping lawsuit could proceed.
That case involves Google Street View vehicles that collected personal information from unencrypted home computer networks. The federal anti-wiretapping law at the heart of both cases is part of the Electronic Communications Privacy Act, a 1986 law that has been under fire for years for not taking into account modern-day technology like email.