Commentary

Anti-Google Ruling Raises Questions About Gmail's Future

In 2004, when Google first rolled out contextual ads on Gmail, privacy advocates raised alarms about the implications of scanning people's messages in order to serve ads.

The Electronic Privacy Information Center said at the time that the service would violate non-Gmail users' privacy, given that they “have not consented to have their communications monitored, nor may they even be aware that their communications are being analyzed,” EPIC wrote nine years ago.

The digital rights group Center for Democracy & Technology said that the service raised concerns, but added that the key issue was whether Google adequately informed people about the ads, in which case they “should be able to decide whether to accept scanning of their email in return for free services.”

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At one point, former California Attorney General Bill Lockyer went so far as to promise to investigate whether Google was violating wiretap laws. But despite the headlines, concern about ads in Gmail largely faded away, while other online privacy concerns -- like ad networks' ability to track people across multiple sites -- became more prominent.

Of course, not everyone thought the Gmail ads were legitimate. In 2010, some users filed privacy lawsuits against the company. The cases seemed like long shots at the time -- possibly because so much time had gone by since Gmail rolled out -- but this week U.S. District Court Judge Lucy Koh surprised many observers with an anti-Google decision.

Koh ruled that Google might indeed violate federal wiretap laws by scanning Gmail messages in order to serve ads to users. She rejected Google's argument that users consent to the scans, ruling that the company's terms of service don't explain the ads clearly enough. Koh also ruled that non-users, who send messages to Gmail users without accepting Gmail's terms of service, never consented to the scans of their messages.

Privacy rights groups say that Koh's decision is a big win for consumers. But for now, the ruling raises more questions than it answers -- including a key one about how Google intends to proceed. The company could rewrite its privacy policies to clarify how its Gmail ads work, but people who don't have Gmail accounts themselves won't be affected by that change. The company could also stop monetizing Gmail with ads, but that move might not make economic sense for Google.

Either way, Koh's decision won't be the last word on this subject, given that Google seems certain to appeal. That process could easily take several years, during which time the company could tweak its privacy policies, monetization strategy, or both.

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