• by Wendy Davis  @wendyndavis, October 16, 2013

A recent ruling that Google potentially violates the wiretap law by scanning Gmail messages could have “widespread effects on a broad swath of internet industries,” the search company says in court papers.

Google makes the assertion in a motion asking U.S. District Court Judge Lucy Koh to authorize an immediate appeal in the case, which hasn't yet proceeded to trial. Last month, Koh ruled that the company's practice of scanning Gmail messages in order to surround them with contextual ads might violate the Electronic Communications Privacy Act.

"Receiving displays of targeted advertisements is well understood as a quid pro quo for having a free Gmail account -- much as watching television commercials is a necessary corollary of watching a program on a broadcast network,” the company says in its papers, filed with Koh last week. “The court’s ruling was a novel interpretation of wiretapping statutes enacted and amended by Congress long before the rise of the Internet and never since updated to reflect the new technological and commercial realities of the Internet age.

The company points out that the ruling already has sparked “copycat litigation” against Yahoo, which was recently hit with two lawsuits stemming from its practice of scanning email messages in order to serve ads.

The federal wiretap law prohibits companies from intercepting electronic communications without people's consent. But that law has an exception for interceptions performed in the “ordinary course” of business.

Google had unsuccessfully argued to Koh that users consented to the scans, and that the scans also are performed in the ordinary course of business. The company says it wants to appeal both of those findings.

Specifically, the company contends that that an interception should be considered part of the ordinary course of business when it “assists the overall business of which email service is part.” Google also argues that Gmail users, as well as non-Gmail users “impliedly,” consented to the company's email scans, on the ground that it's “widely known” that email services providers scan the contents of email messages in order to filter out spam and viruses.