Marquis v. Google

Whether Google's interception of e-mail is a violation of the MA Wiretap Act

Summary

Plaintiff Marquis is on appeal before the Massachusetts Supreme Judicial Court, the state’s high court, after filing a class action case in state court against Google Inc. on behalf of Massachusetts residents with email accounts other than Gmail. Google intercepts and scans their emails exchanged with Gmail users to obtain information used for targeted advertising directed at Gmail users. Because Massachusetts requires the consent of both parties to a communication, Marquis argues that Google’s conduct violates the Massachusetts Wiretap Act.

Top News

  • Google to End Email Content Scanning: After a decade of controversy, Google announced that it will stop scanning the content of all Gmail. Google stopped scanning e-mails for education in 2014 after a lawsuit charged that it violated wiretap laws. Google faced similar allegations in many other cases in the United States and around the world. EPIC warned about Google's e-mail scanning practices back in 2005 and filed a complaint with the FTC in 2009 over the privacy risks in Google's insecure cloud computing services, including Gmail. In 2014, EPIC led a successful campaign to stop Google from scanning student emails for commercial advertising. Last year, EPIC filed a friend-of-the-court brief in a Massachusetts case, again objecting to Google's Gmail scanning. EPIC explained in 2005 that Google's email service undermined online privacy and prevented the adoption of important security methods, such as end-to-end encryption. (Jun. 23, 2017)
  • Google Settles Wiretapping Suit, Shifts Scanning of Gmail Messages to Servers: Google and lawyers for a class of Gmail users have reached a settlement in a case concerning the company's interception of private emails. The 2015 lawsuit accused Google of violating the federal Wiretap Act and California law by surreptitiously scanning Gmail messages for advertising revenue. Google has now agreed "to eliminate any processing of email content" for advertising purposes "prior to the point" when a Gmail user can retrieve email, but scanning of Gmail users (and non-Gmail users) on Google's servers will continue. EPIC recently filed an amicus brief in a related case before the Massachusetts Supreme Court, calling attention to Google's "systematic data mining of millions of private email messages" as a clear violation of the state's Wiretap Act. EPIC has also warned of collusive settlements in consumer privacy cases that enrich lawyers and leave business practices essentially unchanged. (Dec. 15, 2016)
  • More top news

  • EPIC Urges Massachusetts High Court to Protect Email Privacy + (Oct. 24, 2016)
    EPIC has filed an amicus brief in the Massachusetts Supreme Judicial Court regarding email privacy. At issue is Google's scanning of the email of non-Gmail users. EPIC argued that this is prohibited by the Massachusetts Wiretap Act. EPIC described Google's complex scanning and analysis of private communications, concluding that it was far more invasive than the interception of a telephone communications, prohibited by state law. A federal court in California recently ruled that non-Gmail users may sue Google for violation of the state wiretap law. EPIC has filed many amicus briefs in federal and state courts and participated in the successful litigation of a cellphone privacy case before the Massachusetts Judicial Court. The EPIC State Policy Project is based in Somerville, Massachusetts.
  • Court Rules that Gmail Case Can Go Forward, Internet Users Do Not Consent to Routine Inspection of Private Email + (Sep. 26, 2013)
    A federal district court has ruled that Google may have violated the federal Wiretap Act when it routinely intercepted, read, and acquired the contents of email users for advertising purposes. "The court finds that it cannot conclude that any party -- Gmail users or non-Gmail users -- has consented to Google's reading of e-mail for the purposes of creating user profiles or providing targeted advertising," Judge Lucy Koh stated. The court rejected arguments from Google that the activity occurred in the "ordinary course of business." The court said that the interception must be "instrumental" to the provision of an email service and that Google's business interest was not sufficient to meet that test. The court also found that Google had not obtained consent from users for the ad profiling practices. According to the court, "Google has cited no case that stands for the proposition that users who send emails impliedly consent to interceptions and use of their communications by other . . . than the indented recipient of the email." The ruling applies also applies to Google Apps for Education, through which Google obtains emails from educational organizations of students, faculty, staff, and alumni. For more information, see EPIC - Gmail Privacy FAQ.

Question Presented

(1) Whether the Massachusetts Wiretap Act applies to emails sent or received by Massachusetts residents, but which Google intercepts on servers located outside of Massachusetts; and (2) Whether the existence of publicly available information that Google scans emails precludes certification of a class, since any individual might have knowledge the Google would intercept his or her emails with Gmail users.

Factual Background

Plaintiff Marquis is a Massachusetts resident with a non-Gmail email account (AOL.com email account) who routinely exchanges emails with Gmail users. Marquis did not know that Google was intercepting/scanning/reading her emails exchanged with Gmail users.

Gmail is one of the most popular email services in the world, with hundreds of millions of users. Additionally, Google offers “Google Apps,” which allows companies, schools, organizations and others to have their email operated by Google but use their own domain, so the fact that they are a Gmail user is not apparent from their email address.

Google targets advertisements to users of Gmail. Google intercepts the users’ emails, scans the content, and then displays ads based on terms the user provided in the private messages. Google's ad targeting system has expanded since first introduced. Instead of keywords matches an individual email, with "user modeling," Google now scans numerous user emails and maintains user profiles to generate targeted advertising to the Gmail user.

Procedural Background

The lower Court denied class certification on the grounds that the individualized issue of knowledge concerning Google’s email interception predominated over common issues, “except with respect to a possible class of non-Gmail email users that exchanged emails with an email user whose email service was provided by a Google Apps customer who permitted targeted advertising, and as to such a possible class, the court [made] no ruling.” The court also denied Marquis’ motion for partial summary judgment and granted Google’s motion for summary judgment on the grounds that the Wiretap Act does not apply to extraterritorial conduct.

EPIC's Interest

EPIC has long advocated for strong email privacy safeguards and for the application of the "interception" standard to email. In Bunnell v. MPAA, a federal civil wiretap case, EPIC’s amicus brief supported the application of the federal Wiretap Act's protections to email messages in circumstances when the messages are briefly stored while they pass through mail servers. In 2004, EPIC filed an amicus brief in a similar case, United States v. Councilman, a case involving a criminal prosecution under the wiretap act for interception of e-mail. In Councilman, EPIC argued that the Wiretap Act prohibits interception of email, even if the message was briefly "in storage." EPIC noted that email technology guarantees that all messages are briefly "in storage" at various points in their journey between sender and recipient. EPIC observed that Congress intended to protect emails from interception at all stages of their transmittal.

Legal Documents

Supreme Judicial Court, SJC Docket No. 12103

Mass. Superior Court, No. 11-2808-BLS1

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