As I stated in my previous article, a federal court is currently hearing a lawsuit challenging Google’s “targeted advertising” practices. The plaintiffs claim the company violated the Wiretap Act, but Google insists that its conduct falls under exceptions within the Act.
One such exception that likely applies to Google is the “ordinary course of business” clause:
2(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
Google uses targeted advertising in order to fund and therefore maintain its free email services. The plaintiffs argue that this goes against the industry standard for “ordinary business” practices:
263. The ordinary course of business within the industry for webmail electronic communication services for the ability to send and receive electronic communications does not include the interception and use of content of an electronic communication as Google performs on the subject electronic communications.
But, Google makes a solid argument, in its motion to dismiss, that ordinary business practices need only apply to the specific business in question:
But the “ordinary course of business” exemption does not turn on whether an alleged practice is necessary for an ECS provider to deliver an electronic communication. Nor does the exemption turn on whether an ECS provider’s practices conform to Plaintiffs’ subjective notion of the prevailing “industry standard.” Indeed, it would be nonsensical to assume that Congress intended to deprive an ECS provider of the “ordinary course of business” exemption simply because it chooses to run its business differently (or better) than its competitors.
In the case of Google, targeted advertising provides revenue which is used to maintain the free email service at high quality. Without this source of revenue, Google might well have to restructure a core aspect of its current business model.
Nevertheless, since Google explains that “written messages” will be scanned and that they will also be used for advertising purposes, the company is fully within its rights to use Gmail messages for advertising purposes.
Google should continue to stand up for its current methods; otherwise, courts will be enabled to discriminate against new business models at will.