By Justin Silverman

The controversial Massachusetts wiretapping statute is the center of a new class action lawsuit involving what the plaintiffs argue is the illegal scanning of emails sent to Gmail accounts.

MGL Ch. 272 § 99 is perhaps best known for criminalizing the secret recording of in-person conversations without the consent of all parties to that conversation, a “two-party” requirement that often leads to conflicts when citizens record police officers. The law, however, also prohibits the interception of any wire communication without the consent of all parties to that communication.

“Google now uses a new advertising system dubbed ‘interest-based advertising’,” according to the complaint. “Instead of basing advertising off of keywords found in a single email… Google intercepts, discloses or scans numerous emails exchanged between non-Gmail users and Gmail users.” Because those non-Gmail users did not consent to this scanning, the argument goes, Google is violating the wiretapping statute and the privacy interests of the plaintiffs.

A CNET article on the lawsuit quotes Google as saying: “We’re not going to comment on the ongoing litigation. But to be clear, Gmail has from the beginning used automated scanning technology to show our users relevant advertisements that help to keep our services free.”

The wiretapping statute was enacted to allow law enforcement to listen to the private conversations of those suspected of organized crime, and to protect everyone else from having their private conversations recorded. Most states have similar statutes, but allow for such recordings or “interceptions” if only one party to the conversation consents. Massachusetts is in the minority of states that require consent from all parties, which often leads to cases involving the recording of police, and, perhaps now, the scanning of emails. Though I haven’t read the Gmail terms of service, I assume there is a provision that permits such scanning of emails sent and received from Google accounts. Though other privacy arguments against such scanning abound, such consent from a Gmail account holder is likely sufficient under the wiretapping statutes of “one-party” states.

Either way, Google’s explanations seem to be doing little to assuage the public’s unease with the practice.

Justin served as founding president of Suffolk Media Law. He graduated from Suffolk University Law School in 2011. You can follow Justin on Twitter at @MediaLawMatters or visit www.justinsilverman.com.

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