According to the judge, quite possibly not because it's not instrumental in providing the service.
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.
Could Google not argue that if GMail wasn't making money (through scanning email and serving ads), then they wouldn't have a business case for gmail, and it wouldn't exist? In this sense, ads are absolutely instrumental in providing service. spam filtering and prioritzation, on the other hand, are not.
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!
Well, there is FastMail†(which was recently spun back off of Opera). You can get a good web mail service without ads in return for a modest subscription fee.
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!
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.
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.