GOOGLE PERPETUATES PRIVACY CONCERNS WITH ITS NEW PERSONALIZED SEARCH FEATURE

Google recently enhanced its search engine functionality so that a user’s personal information from Gmail, Google Calendar, and Google+ are utilized to generate user-specific answers to personal questions such as “When is my flight leaving?” or “What time is my reservation?”[1] The feature is available on any device on which Google search is available.[2] Although Google claims this feature to be their most innovative yet, it is likely to be in violation of the Federal Wiretap Act.[3]

Google launched its personalized search tool in 2004.[4] At that time, the function used the individual’s Google search history to come up with results that were most relevant to the user’s particular interests.[5] In 2005, the company began ranking search results based on cumulative data of personal behavior collected from all users.[6] In 2009, social media data was also integrated into Google search,[7] and, since August 2013, Google search has been able to pull information from users’ personal accounts to offer the most relevant and individualized results for them.[8] The company explains that it collects the data by embedding cookies and anonymous identifiers to the users’ devices and claims that the right to do so had been added to the privacy policy to which all Google users must agree.[9]

This new privacy policy does not allow consumers to keep their information in separate accounts in a practical manner.[10] Enrollment in the comingling of all services is automatic, while opting-out all at once is not available.[11] Even when the users opt-out from the data collecting services for all accounts one by one, cookies embedded in their devices do not become deactivated.[12]

Since the feature is fairly new, it has not yet been subject many complaints. But, in September 2013, a federal judge in California allowed a consolidated wiretapping action to proceed against Google in conjunction with their previous data collecting policies from Gmail accounts.[13] In this ongoing case, plaintiffs allege that Google “intentionally intercepted, read and acquired content” from their emails, for the purposes of targeted advertising.[14]

Google filed a motion to dismiss, asserting that the scanning of emails was within the exception of the “ordinary course of business”[15] and that the users consented to the company’s activities by accepting its privacy policy.[16] However, the Court dismissed Google’s motion, holding that data collection, for the purposes of targeted advertising, does not constitute “ordinary course of business” for an email account provider, and merely adjusting the privacy policy does not mean that the users have “explicitly” or “implicitly” consented to the access to their accounts.[17]

Since Google’s new search feature furthers the amount of intrusion into the users’ private information, the company may have subjected itself to increased liability, based on the outcome of this ongoing case.[18]



[1] Jolie O’Dell, Google’s big brain now includes your calendar, tracking numbers, and more, Venture Beat (Aug. 14, 2013, 11:00 AM),

http://venturebeat.com/2013/08/14/googles-big-brain-now-includes-your-calendar-tracking-numbers-more/.

[2] Id.

[3] See 18 U.S.C. § 2511 (2013).

[4] Elinor Mills, Google automates personalized search, CNET (Jun. 28, 2005, 1:53 PM), http://news.cnet.com/Google-automates-personalized-search/2100-1032_3-5766899.html.

[5] Id. (explaining that, for example, searching the word “bass” would lead to results related to fish for someone who had previously searched fishing terms on Google, and results related to musical instruments for someone who had previously searched terms related to music).

[6] Eugene Agichtein et al., Improving Web Search Ranking by Incorporating User Behavior Information, SIGIR ’06 19, available at http://web.cs.dal.ca/~anwar/ir/review/grads.pdf (last visited Oct. 23, 2013) User behavior data consists of scrolling time in each search term, dwelling time on each link and reformulation patterns of search terms until the user gets the desired result.

[7] Sarah Kessler, Why Google’s Social Search Is Too Much, Too Soon, Mashable (Jan. 13, 2012), http://mashable.com/2012/01/13/google-social-search-too-much-too-soon/. A search for a name would return a result of someone that is already in the user’s social network, rather than many strangers with the same name.

[8] See O’Dell, supra note 1.

[9]  See Privacy Policy, Google (June 24, 2013), http://www.google.com/policies/privacy/.

[10] Complaint at 62, Hoey v. Google, Inc., No. 12-cv-01448 (E.D. Pa. filed Mar. 22, 2012), available at http://www.courthousenews.com/2012/03/26/Goog.pdf.

[11] Id.

[12] See Demand for Jury Trial, Yngelmo v. Google, Inc., available at http://www.technologyreview.com/sites/default/files/legacy/yngelmo_v_google.pdf (last visited Oct. 26, 2013).

[13] Mathew J. Schwartz, Google Wiretapping Lawsuits Can Proceed, Judges Say, InformationWeek (Oct. 2, 2013, 1:32 PM), http://www.informationweek.com/security/privacy/google-wiretapping-lawsuits-can-proceed/240162124.

[14] See Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss, In Re: Google, Inc. Gmail Litigation, No. 13-MD-02439-LHK (N.D. Ca. filed Sept. 26, 2013), available at https://www.documentcloud.org/documents/799772-google-class-action.html.

[15] Id. at 12.

[16] Id. at 22.

[17] See id. at 22, 28.

[18] See id.; Schwartz supra note 14.

Author: Gulsun Turkmenogullari

Gulsun is an Associate Editor for the Rutgers Computer & Technology Law Journal. She received her Bachelor of Arts Degree in Economics from Bogazici University in Istanbul, where she also had some work experience in finance industry. Before her transition into Law School, she worked as a paralegal in a law firm located in New York. She also interned with The Honorable Joan M. Kenney of the New York Supreme Court in Summer 2013. Gulsun plans to practice corporate law after graduation. With technology becoming prevalent in every aspect of the business world, she thinks her work in RCTJ will contribute to her future aspirations. At Rutgers, she is also the Secretary of the Women’s Law Forum and a member of the Jessup International Moot Court Competition Team. She may be contacted at gulsun.turkmenogullari@rutgers.edu.

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