From the e-mail case, but this logic would generate the relevant distinction. Their initial legal positioning seems open to question, but only time will tell.

Google also scans e-mails in paid Google Apps accounts.

Edit: correction to myself. Whilst paid Google Apps accounts still show ads and Web Clips, Google now have this statement:

If you are using Google Apps (free edition), email is scanned so we can display contextually relevant advertising in some circumstances.

http://support.google.com/a/bin/answer.py?hl=en&answer=60762

the implication being that the paid accounts are scanned only for virus, spam and Priority Inbox processing.

Sorry, I was wrong.

And also because such an interpretation would allow any business model based on exploiting the contents of the users email for profit, which is clearly not the intent of the wiretapping statute.

However, spam filtering (for sure) and prioritization (maybe) improve the user experience, thus drawing in more clients and retaining the existing base.

Spam filtering, etc., make the service more attractive, boosting the user base, which makes it possible to charge more for the opportunity to show ads to the customer base, which, of course, is how Google gets paid.

Spam filtering, etc., are no different than improving the Search Engine. Both attract more eyeballs and, thus, more ad revenue!

So, as a Gmail user, you have a choice. Free, but you get to see dumpster ads because the email was about dumping some stuff off a database. Or on your credit card, because you don't want silicon being any more aware of your email bits than absolutely necessary to show them to you.

It should be up to you, the user, not Judge Koh!

†https://www.fastmail.fm/signup/personal.html

I'm sticking with Gmail.

I'm sticking with Gmail.

whatever happens with the case appeal after appeal time will tell, but a group of users sued Google for the things mentioned in the lawsuit. So the judge didn't wake up one day and pick on Gmail for no reason, there was a lawsuit by users--not all Gmail users share your opinions--and the judge had to decide on a few things.

My guess is that most users don't know what happens to their email (scan and advertising profiles based on the content of emails) because Google isn't exactly publicizing this for obvious reasons. So that will play a role and they are way of testing this via scientific surveys and polls. As long as people know and consent to this, Google will have no problem. For example, you can record a conversation as long as the other person consent to it. Who and how they consented if the did, is the $64k question.

The allegation is that many users have been duped.

The Gmail user gets a free email account with a large storage allowance, an effective search engine, and a dynamite spam filter. Google gets to collect revenue in excess of cost (Google is very good at server farms) for the opportunity to show said user relevant ads.

Thus, Google's access to the content of the user's email benefits both Google and the user!

The email scanning just makes extra profits for google and their advertisers at the expense of people's privacy.

Automated scanning is inherent in allowing gmail to be free. You submit to this when singing up for the service. 3rd party users emailing a plaintext email across the internet also have no expectation of privacy, just like mailing a postcard to someone across the world.

If this business model is allowed, imagine all the other kinds of profile that communications providers would be able to sell about you based on the contents of your email.

Assume this is true for a second. I'm not aware of any legal caselaw that has ever drawn such a distinction for the acts in play here. So I guess i don't get while people keep saying this like it should or would matter.

(I can't really opine on the case itself for obvious reasons)

Law is always a distant second to morality. Sometimes it catches up, sometimes it doesn't. But to define what is right by a lack of previously established law is astoundingly naive, bordering on self-serving. Even when there is precedent, it doesn't necessarily define the morality of a situation, e.g. slavery, driving under the influence and women's suffrage among many thousands of examples.

That's why people keep mentioning it.

Most other circuits (except two I believe) have explicitly held it to be okay for things like behavioral advertising.

See, for example, Kirch v. Embarq Management Co (10th circuit)

Given ECPA does not define "ordinary course of business" in any way, and the accompanying senate reports do not say anything about the exception being related to "for the benefit of the end user" (and instead talks entirely about the need/desires of the ISPS using the communications) , I would guess the opinion will have some trouble at the appellate level, but i guess we'll see!

(Though any pair of cases where an appeals court has said they are different would be fine!)

To filter spam, you need to make enough sense of the email to identify it as spammy, according to some algorithm. To serve an ad, you need to make enough sense of the email to indicate it's about something one or more of your advertisers cares about. I can't think of a way to distinguish between the spam robot's access vs the ad robot's.