updated its terms of service (TOS) yesterday to make more explicit the fact that it scans Gmail for the purpose of matching email content with ads. The relevant part of the updated TOS reads:
Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.
Google has been sued for the practice as an alleged violation of the Federal Wiretap Act. The case survived Google’s motion to dismiss but was denied class action status, which effectively kills the litigation because individual plaintiffs are unlikely to proceed against Google.
The reason the case wasn’t allowed to go forward as a class action is because the judge decided the issue of whether users had consented to the practice of Google’s email scanning was insufficiently “cohesive.” The issue of individual users’ consent to Gmail scanning was thus seen as too subjective and variable to allow all affected users to constitute a single class.
Just to be sure it wouldn’t face similar allegations in the future, Google made the fact of Gmail scanning explicit in its TOS. Now users will almost certainly be held to have consented to the practice — despite the fact that people rarely read terms of service.
Google’s rival Microsoft appears to have ended its controversial “Scroogled” anti-Google campaign. The brainchild of former Hillary Clinton campaign manager and now Microsoft EVP and Chief Strategy Officer Mark Penn, Scroogled attacked several Google practices including Gmail scanning.
There are a number of reasons that Scroogled may be over. Microsoft says that the campaign has run its course.
However Scroogled also generated mixed results at best. The data suggest it failed to generate new users for Microsoft. It also exposed Microsoft to charges of hypocrisy when the company surreptitiously went into a blogger’s Hotmail/Outlook.com account to chase down an internal company leak.
In the post-NSA era, privacy is a hotter topic than ever. And there’s evidence that people have changed their online behavior as a result of heightened privacy concerns.
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