Email Advertisements: Did Google and Yahoo Violate State Privacy Laws?
The California Invasion of Privacy Act (CIPA) prohibits the use of machines, devices or other means to learn the contents of wires, cables or communications without the consent of all parties involved. Recently, two class-action lawsuits were filed against Google and Yahoo alleging violations of CIPA.
“While technology has facilitated communication, it has also had some unexpected, and to some injurious, consequences,” explained attorney James Ballidis, “diminishing the security of personal information being one of them.”
California Penal Code section 631 stipulates that: "[a]ny person who ... willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state" is in violation of the law and can be fined and face other penalties. Essentially, this extends the definition of wiretapping to cover various acts of intercepting or identifying the contents of transmissions over the Internet or other electronic devices.
Section 632 also stipulates that, “Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device” is in violation of the law. Essentially, this means that it is illegal to eavesdrop on or record any type of communication, including those that take place over the Internet or email.
Citing violations of California Penal Code section 631 and section 632, residents in California who do not have Gmail and Yahoo accounts are suing the companies, claiming they either eavesdropped on email communications or engaged in illegal wiretapping. According to the plaintiffs, those who use Gmail or Yahoo’s email service agree in the terms and conditions to have their emails reviewed; however, since the plaintiffs do not have accounts with these companies, they did not give such consent. When users sign into their Gmail or Yahoo accounts, they see ads that reference subjects discussed in the emails received from non-subscribers. For example, if a non-subscriber sends an email to a Google user about dieting, the individual using Gmail might see an ad for diet or weight loss products.
The plaintiffs allege that Google intercepted their emails before they were delivered and reviewed both the words and thought processes in order to display the relevant ads. This, according to the attorneys filing suit, is a serious violation that threatens the exercise of personal liberties.
Is There a Case?
According to ABC News, Google indicated that the targeted advertisements in Gmail are fully automated, and there are no humans reading emails or reviewing any Google account information in order to generate them.
However, this fact alone may not be enough to shield Google and Yahoo from liability if they are, in fact, intercepting and discerning the meaning of any of non-subscriber emails in order to generate ads. The California Privacy law clearly stipulates in 631(a) that it is a violation to intentionally tap or make “any unauthorized connection” by “means of any machine, instrument or contrivance, or in any other manner.” Because users are targeted with ads based on information from emails, there must be some means of intercepting and connecting to those emails without consent. The violation, therefore, may exist under the plain language of the statute.
While ABC News indicates that there is currently no federal law specifically forbidding behavioral advertising on the Internet, a case called Cindy Leong v. Carrier IQ Inc et al, Carey Eckert v. Carrier IQ Inc et al, CV 12-01564 held that the Federal Wiretap Act does not completely preempt California’s Act and that, because the California Law is more restrictive than the federal law, the Federal Law supersedes California law only if the state is offering less protection.
“The California law may provide the protection that these users need to have Google and Yahoo’s injurious practices—specifically, the use of personal information without consent—stopped,” explains an attorney.
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