Google Again Sued Over Gmail Content Scanning

The latest complaint argues Googles 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. Its
an issue Google has been dealing with
since Gmail was introduced in 2004.
At Googles request, the Dunbar suit has been sealed. However, in a reply filed prior to the sealing of the case, Googles attorneys provide highlighted terms of service and the companys privacy policy as exhibits to show that users are informed about how Gmail operates.
Michaelss complaint takes the novel approach of arguing that while Google asks users to accept its terms of service, the company doesnt require that users actually understand what theyre agreeing to. Such comprehension is all but impossible, the complaint suggests, because terms of service documents are difficult to read, if theyre read at all.
The complaint bemoans how users who wish to read Googles 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 theres 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 doesnt usually read the fine print that is a condition for accessing some Web sites.
Its widely known that people dont read lengthy documents online, particularly dry legalese. Theres even Internet shorthand for the phenomenon:
TL; DR,
which stands for too long; didnt read.
Sadly for the plaintiff, theres 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 Apples 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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Google Again Sued Over Gmail Content Scanning