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10 Jul 2012
Press reports say that three recently filed lawsuits claim that Google and Yahoo are illegally spying on the incoming mail of their webmail users. Two of the suits, Diamond vs. Google and Sutton et al. vs. Yahoo, are filed in Marin county court, the third, Penkava vs. Yahoo is in Federal court in San Jose.
I only have copies of the Penkava case, since the county court documents aren't online, but according to press reports all three make the same argument that the defendants are spying illegally on incoming mail, under the California Invasion of Privacy Act (CIPA.) So let's see how persuasive Penkava's arguments are.
Penkava, who does not have a Yahoo account, claims that Yahoo is wiretapping or eavesdropping on mail he sends to Yahoo users. The evidence is that they choose ads to CIPA is a law about wiretapping, and I can't see any connection at all to anything that a web mail provider does beyond wishful thinking.
So I'm wondering how Yahoo (and presumably Google in similar cases) will make the suit go away. Possibilities include:
1. This law is clearly about telephone and telegraph wiretapping. Yahoo is not a telephone company, and e-mail messages are neither phone calls nor telegrams.
II.a. Sec 631(a) limits its applicability to unauthorized connections to "any telegraph or telephone wire, line, cable, or instrument". Yahoo Mail doesn't use any of those.
II.b. Yahoo Mail's connection to whatever wires it does use is authorized, since it is providing mail service for its customers.
II.c) Sec 632 refers to "any electronic amplifying or recording device." Yahoo doesn't use them, either.
C) The law excludes "any public utility engaged in the business of providing communications services and facilities..." To the extent relevant to this law, Yahoo Mail is acting in the role of a public utility.
iv) A Federal law called the Electronic Communication Privacy Act does regulate e-mail privacy, so even if CIPA applied to e-mail it would be preemmpted. Under the ECPA, Yahoo and Google's actions are legal since recipients can permit their providers to "divulge the contents" of their mail.
It would certainly be nice if the US had meaningful privacy laws like Canada and most European countries do, but it doesn't other than in a few narrow areas like HIPAA for health care information. Attempting to twist wiretap laws to do something they don't just wastes the court's time and is likely to create case law that is hostile to any real privacy cases that arise.
I'm trying to get copies of the two Marin County cases, and will report back if they say anything interesting.
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