Recent lawsuits against Google and LinkedIn remind website and mobile application developers to be fully transparent when crafting user agreements and interacting with users.
In the Google suit, Google’s Gmail service is accused of scanning users email in order to create user profiles and provide targeted advertising. In an attempt to dismiss the case, Google unsuccessfully argued that the Wiretap Act, which authorizes email providers to intercept messages in order to facilitate message delivery (or other incidental functions), protected its practices. More significantly, however, was how the court treated Google’s assertion that Gmail users had consented to the scanning under its end-user agreement. The court held that the agreement did not adequately spell out Gmail’s practices. Nor did it explain how Google would use the information it was scanning. Additionally, the court found that non-Gmail users, whose emails to Gmail users would also be scanned, did not consent to the user agreement. This ruling suggests that developers should continually be transparent about their practices, including the purpose of the information they are collecting. And developers should be mindful about non-users who may interact with their platform, and whether such users’ consent raises privacy concerns.
The lawsuits are In re: Google Inc. Gmail Litigation, 13-MD-02430-LHK, and Perkins et al. v. LinkedIn Corporation, Case No. 13-cv-04303-HRL.