No, Gmail’s ad-targeting isn’t wiretapping

[Commentary] A federal judge in California has ruled that Google may have committed wiretapping when it used the contents of e-mails to choose ads to display to its own customers. The poorly reasoned decision isn't just unfair to Google, it threatens to impose unpredictable legal liability on other online businesses. The plaintiffs' argument goes like this: When Google receives an e-mail on your behalf, it doesn't just deliver it to your inbox. It also "intercepts" the e-mail and "reads" it to scan for ads. That, in the plaintiffs' view, violates the wiretapping provisions of the Electronic Communication Privacy Act (ECPA). The plaintiffs should have lost right there.

To provide a useful e-mail service, Google needs to perform a number of complex operations on each e-mail a user receives. Google servers read e-mail headers to decide whom to deliver the e-mails to, scan e-mails for spam and viruses, index them to aid in searching, categorize them for its priority inbox feature, convert them to HTML for display in the user's browser, and, yes, scan them to help select ads to display next to each e-mail. If "reading" an e-mail for ad-serving purposes is "interception" under the wiretap act, those other functions could be illegal wiretapping, too. And that would create a huge headache for anyone who runs an e-mail service or social media site.