This week, Google tried again. The company's newest terms of service now state: “Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored."
In the past, Google's disclosed that it might “pre-screen” content. But, according to Koh, the company implied it would only do so in order to filter spam or other problematic material -- as opposed to serving targeted ads.
Google also previously disclosed that it might target ads based on information “stored” on the service. But Koh said last September that Google's wording didn't alert people that their emails might be scanned for ad purposes.
Meanwhile, the lawsuit itself was recently derailed by a separate ruling by Koh, who denied the consumers the ability to proceed with a class-action. They recently filed the paperwork to appeal that ruling to the 9th Circuit.
Google isn't the only one facing challenges to its practice of scanning emails. Yahoo was sued recently for allegedly violating the wiretap law by scanning emails without obtaining consumers' consent. Yahoo is arguing that its terms of service unambiguously inform users about the company's policies. Those terms disclose that Yahoo's systems “scan and analyze all incoming and outgoing communications content sent and received from your account ... to match and serve targeted advertising and for spam and malware detection and abuse protection.”
The consumers in that lawsuit counter that the words scan and analyze “are amorphous,” and don't “explicitly inform Yahoo Mail users what Yahoo does with the contents of its users' email.”
Koh, who also presides over the lawsuit against Yahoo, hasn't yet ruled on whether that company's terms of service adequately inform consumers about its practices.