Reply all: BCer launches privacy class action against Google

Reply all: BCer launches privacy class action against Google

A Sechelt resident has filed a class action suit with the British Columbia Supreme Court against tech superpower Google Inc. The claim alleges privacy and copyright violations committed by the Gmail content scanning process, which includes digital review of correspondence between Gmail users and users of other, non-Gmail accounts.

He is seeking damages of $500 per email as well as an injunction to stop Google from scanning and collecting information until it receives explicit consent of all parties to email exchanges.

At issue is the process whereby Google collects valuable information from its email wing Gmail to learn more about users for the purposes of displaying consumer-contoured ads. The statement of claim lists violation of copyright in Canada, the Privacy Act, as well as the Competition Act.

The claim: “Google’s activities include intentionally and systematically intercepting email sent to Gmail users by individuals who are not Gmail subscribers and whose emails are sent from non-Gmail email accounts. Google intercepts incoming emails to Gmail accounts in order to obtain the words, content, and meaning of the emails. The intercepted data within these emails and the use of this data has value to Google.”

At root of the claim is the use of the information taken and scanned without permission, and for the company’s ultimate financial gain.

“Among other things, Google increases its revenues from third party advertisers by displaying ‘targeted’ ads to consumers based upon data received from others. Google’s intercepting and taking of the data from the content of emails allows Google to avoid paying traffic acquisition costs – i.e. the costs it would normally pay to third party owners or providers for such data.”

There is also strong language about the lack of transparency demonstrated by Google in making available about how and why it gathers the information from Gmail.

“Google has failed or omitted to disclose or describe, either adequately or at all, the fact and the extent of Google’s interception, copying, retention, review and use of emails sent by the Class Members to Gmail account holders. The Class Members own copyright and more rights in the emails they draft, prepare, and send and in any other works attached thereto such as photographs, drawings, and sound recordings…”

Though Google Canada was not providing comment on the suit to any media outlets, the Google Privacy Policy and the FAQ about Gmail give clues as to potential defenses.

In response to the question, “Is Google reading my mail?” the site states,

“No, but automatic scanning and filtering technology is at the heart of Gmail. Gmail scans and processes all messages using fully automated systems in order to do useful and innovative stuff like filter spam, detect viruses and malware, show relevant ads, and develop and deliver new features across your Google experience.”

Its privacy policy frames the collection of information as a value-added for users.

“We collect information to provide better services to all of our users – from figuring out basic stuff like which language you speak, to more complex things like which ads you’ll find most useful or the people who matter most to you online.”

Unfortunately, as is bound to come out as a central issue, only those who subscribe to a Google or Gmail account have ever formally accepted Google’s privacy policy and waived rights via terms of service. The class in the BC civil action case will be exclusively individuals who have not consented to Google’s data scanning activities but who have sent email to a Gmail account.

The BC suit presents another chink in Google’s “don’t be evil” mantra armour. Google this past summer paid the U.S. Federal Trade Commission $22.5M to settle charges for misrepresenting privacy assurances. It’s also in a tiff with the EU data protection commissioners who are concerned that Google is breaching EU privacy laws. Not to mention additional, similar class actions popping up across the U.S.

American law professor Eric Goldman has publicly dismissed the validity of the British Columbia lawsuit, largely because of what a holding for the plaintiffs would mean when applied to anti-virus or anti-spam software.

“If electronic scrutiny of private email constitutes an interception then all anti-spam software violates that as well … the same probably with virus checkers,” Goldman told Postmedia.

Though Goldman raises an interesting practical point, it’s unlikely that the judicial ramifications on the software industry warrant a reasonable counter-argument to the privacy and copyright concerns. The technology may be the same, but the application of that technology is so different that it merits a separate rights debate.

Personally, I am of the opinion that this case presents some valid concerns. Moreover, the solution to assuage these claimants’ concerns seems easy from a technology logistics perspective: Google should close the gap between the information it has permission to collect and what it does collect.

The plaintiff, Wayne Plimmer, is represented by Mike Wagner of Farris, Vaughan, Wills & Murphy.

Denise Brunsdon is a JD/MBA candidate at Western University.