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3/9/2011
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Google Again Sued Over Gmail Content Scanning

The latest complaint argues Google's disclosures are inadequate because nobody reads lengthy legal documents.

Attorneys representing former Gmail user Kelly Michaels of Smith County, Texas, have sued Google, claiming that its Gmail service violates users' privacy by scanning e-mail messages to serve relevant ads.

This is not the first time Google has faced such a suit. Another Texas resident, Keith Dunbar, made similar claims in November, 2010. It's an issue Google has been dealing with since Gmail was introduced in 2004.

At Google's request, the Dunbar suit has been sealed. However, in a reply filed prior to the sealing of the case, Google's attorneys provide highlighted terms of service and the company's privacy policy as exhibits to show that users are informed about how Gmail operates.

Michaels's complaint takes the novel approach of arguing that while Google asks users to accept its terms of service, the company doesn't require that users actually understand what they're agreeing to. Such comprehension is all but impossible, the complaint suggests, because terms of service documents are difficult to read, if they're read at all.

The complaint bemoans how users who wish to read Google's Terms of Service have to scroll through a small text box with something like 92 paragraphs or visit a 15-page print-friendly version. Then there's a separate Program Policy and Privacy Policy, each on different Web pages, and the Privacy Policy includes some 55 external links.

"None of the multiple pages or links provides an opportunity for a user to inquire about the meaning of any of the terms used or negotiate the addition or deletion of the terms of the documents the user is supposed to be accepting," the complaint says, as if there were any Terms of Service documents that supported the addition or deletion of specific terms. That may happen in face-to-face contract negotiation but Web contracts have traditionally been take-it-or-leave-it affairs.

The complaint goes on to observe that no less than U.S. Supreme Court Chief Justice John Roberts "has admitted he doesn't usually read the 'fine print' that is a condition for accessing some Web sites."

It's widely known that people don't read lengthy documents online, particularly dry legalese. There's even Internet shorthand for the phenomenon: "TL; DR," which stands for "too long; didn't read."

Sadly for the plaintiff, there's no legal recognition of "TL; DR," even if companies like Google and Facebook recognize the problem. Both companies have acknowledged how difficult it is to read and understand lengthy privacy and terms of service documents, and have tried to make them less impenetrable.

Readability also recently surfaced in the ongoing legal battle between Microsoft and Apple over whether the term "App Store" can be trademarked. Microsoft argued that Apple's court filing should be rejected because it uses an impermissibly small font. However, that claim is based on specific rules for document presentation set forth by the court.

Eric Goldman, associate professor of law at Santa Clara University School of Law, characterized Dunbar v. Google last year as an "are-you-kidding-me? lawsuit" on his blog. He considers Michaels v. Google to be essentially the same.

"Both of these lawsuits feel like they should have been brought in 2004, not 2011," he wrote in an e-mail. "There is no additional merit to arguing the user agreement was 'TL; DR.'"

Goldman says that the most interesting thing about the case is its location, the Eastern District of Texas, a venue notorious in the past as a breeding ground for patent litigation.

"There have been some changes in patent litigation that may be reducing the amount of patent work taking place in that district," wrote Goldman. "Maybe some of those lawyers are going to repurpose into privacy plaintiff lawyers with their newly available time?"

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