Judge sides with plaintiff, refuses to dismiss wiretapping suit against Google

Judge Koh published her ruling on Google’s motion to dismiss today.
It’s a 43 page ruling, which I’m still digesting. But the short answer is that Google’s motion was denied almost in total. Google’s motion was granted for two of the claims: that email is confidential as defined by the California Invasion of Privacy Act (CIPA, section 632) and dismissal of a claim under Pennsylvania law.

For the foregoing reasons, the Court hereby GRANTS Google’s Motion to Dismiss with leave to amend with respect to Plaintiffs’ CIPA section 632 claims and Plaintiffs’ Pennsylvania law claim as it relates those who received emails from Gmail users. The Court DENIES Google’s Motion to Dismiss with respect to all other claims. Plaintiffs shall file any amended complaint within 21 days of this order. Plaintiffs may not add new causes of action or parties without a stipulation or order of the Court under Rule 15 of the Federal Rules of Civil Procedure. Failure to cure deficiencies will result in dismissal with prejudice.

The dismissals are a little easier to explain than what was granted. I’ll tackle those now. With the motion to dismiss, I will put together a longer post that discusses what the plaintiffs are alleging and what the judge found.
One of the claim’s by the plaintiff is that under the California invasion of privacy act (CIPA) email should be considered confidential. The act defines confidential communication as

any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

The judge dismisses this claim stating that the “[P]laintiffs have not plausibly alleged that they had an objectively reasonable expectation that their email communications were “confidential” under the terms of section 632.14” In an “overabundance of caution,” however, she grants the Plaintiffs leave to amend their complaint.
The plaintiffs are also making claims under other state laws in addition to California: Pennsylvania, Florida and Maryland. Google argued that Pennsylvania law only protects the sender of the message and since the plaintiffs are representing the receivers of the message, the law does not apply. The judge agrees, but granted the plaintiffs leave to amend the complaint.
All other motions were denied.
 

Yahoo trying to cope with misdirected email
Google wiretapping case, what the judge ruled

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Questions on Google lawsuit post

A couple questions in the previous discussion thread about the Google privacy case. Both concern permission granted to Google to scan emails.
Google’s stance about this is fairly simple.
Gmail users give explicit permission for their mail to be scanned.
People who send mail to Gmail users give implicit permission for their mail to be scanned.
The plaintiff’s lawyers are alleging that some subset of gmail users – specifically those at Universities that use Google apps and ISP customers like CableOne – did not give explicit permission for their mail to be scanned by Google. They’re also arguing no senders give permission.
In addition to the lack of permission, the plaintiffs lawyers are arguing that Google’s behaviour is in violation of Google’s own policies.
Google thinks scanning is part of the ordinary course of business and they’re doing nothing wrong.
This is an interesting case. I think anyone who knows about email understands that the people who run the mail server have the ability to read anything that goes through. But a lot of us trust that most postmaster and admin types consider it unprofessional to look at mail without a decent reason. There are good reasons an admin might need to go into a mail spool.
Automated filtering is simply a part of life on the internet these days. Mails have to be scanned for viruses, spam and, yes, they are scanned for targeted advertising. I’m not convinced Google is outside the norm when they say that any emails sent through Google is personal information given too Google and therefore Google can use that information in accordance with their policies.

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Gmail shows authentication data to the recipient

Yesterday Gmail rolled out some changes to their interface. One of the changes is that they are now showing end users authentication results in the user screen.
It’s really the next step in email authentication, showing the results to the end user.
So how does Google do this? Google is checking both SPF and DKIM. If mail is authenticated and the authentication matches the from address then they display the email as:
mail from steve to me
If we click on “details” for that message, we find more specific information.
full details of message showing signing domain and spf domainIn this case the mail went through our outgoing mailserver to gmail.
Mailed-by indicates that the message passed SPF and that the IP address is a valid source of mail from wordtothewise.com.
Signed-by shows the domain in the DKIM d=. In this case, we signed with the subdomain dt.wordtothewise.com. That’s what happens when you sign using the domain in the From address (or a subdomain of it).
For a lot of bulk senders, though, their mail is signed using their ESP’s domain instead.  In that case Gmail shows who signed the mail as well as the from address.

And when we click on “details” for that message we see:
3rd party signature detailsThis is an email from a sender using Madmimi as an ESP. Madmimi is handling both the SPF authentication and the DKIM authentication.
As an aside, this particular  sender has a high enough reputation that Gmail is offering me an unsubscribe option in their interface.
Gmail is distinguishing between first party and third party signatures in authentication. If the mail is authenticated, but the authentication appears to be handled by a separate entity, then Gmail is alerting recipients to that fact.
What does this mean for bulk senders?
For senders that are signing with a domain that matches their From: domain, there is no change. Recipients will not see any mention of your ESP in the headers.
However, if you are using an ESP that is signing your mail with a domain they own, then your recipients will see that information displayed in the email interface. If you don’t want this to be displayed by Gmail, then you will need to move to first party signing. Talk to your ESP about this. If they’re unsure of how to manage it, you can point them to DKIM Core for an Email Service Provider.
Gmail blogpost about the changes
Gmail help page about authentication results

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TWSD: Lying and Hiding

Another installment in my ongoing series: That’s What Spammers Do. In today’s installment we take a look at a company deceiving recipients and hiding their real identity.
One of my disposable addresses has been getting heavily spammed from mylife.com. The subject lines are not just deceptive, they are provably lies. The mail is coming from random domains like urlprotect.com or choosefrequency.com or winnernotice.com advertising links at safetyurl.com or childsafeblogging.com or usakidprotect.com.
The spam all claims someone is “searching for…” at their website. The only thing is, the email address is associated with a fake name I gave while testing a website on behalf of a client. I know what website received the data and I know what other data was provided during the signup process. I also know that the privacy policy at the time said that my data would not be shared and that only the company I gave the information to would be sending me email.
Just more proof that privacy policies aren’t worth the paper they’re written on. But that’s not my real issue here.
The real issue is that I am receiving mail that is clearly deceptive. The subject lines of the emails up until yesterday were “(1) New Message – Someone Searching for You, Find Out…” Yesterday, I actually clicked through one of the messages to confirm that the emails were ending up at mylife.com. After that, the subject lines of the emails changed to “(1) New Person is Searching for You.”  I don’t know for sure that my click has caused the change in subject lines, but the timing seems a bit coincidental.
It’s not that someone, somewhere gave mylife.com bad data, or that someone typed a name into the mylife.com search engine and the mylife.com database showed that name and my email address were the same. Neither this name or this email address show up in a google search and I can say with certainty that this is a unique address and name combination given to a specific website. Therefore, the subject lines are clearly and demonstrably lies.
The spams are also coming from different domains and advertising links in different domains. The content is identical, the CAN SPAM addresses are identical. While the court may not rule this is deceptive under the rules of CAN SPAM, it certainly is an attempt to avoid domain level spam filters.
Who are mylife.com? Well, their website and the CAN SPAM address on their spam claims they are the company formerly known as reunion.com. I’ve talked about reunion.com here before. They have a history of harvesting addresses from users address books. They were sued for deceptive email practices under California law, but won the case just recently. They seem to think that the court case was permission to send deceptive email and have thus ramped up their deceptive practices.
If you are a legitimate email marketer, there are a couple take home messages here.
1) Spammers send mail with different domains, from different IP addresses, that contain identical content, landing pages and CAN SPAM addresses. Legitimate marketers should not rotate content and sends through different domains or different IP addresses. Pick your domain, pick your IP and stick with it.
1a) Spammers use randomly chosen domain names and cycle through domains frequently. Legitimate marketers must not use unrelated domains in marketing. Use a domain name that relates to your product, your industry or you.
2) Spammers send mail with deceptive subject lines. Legitimate marketers should make sure their subject lines are clear and truthful.
3) Spammers send mail in violation of the privacy policy under which information was collected. Legitimate marketers should be very careful to handle data in accordance with their privacy policies.
That’s what spammers do. Is that what you do?

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