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.

No expectation of privacy, says Google
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No expectation of privacy, says Google

I spent yesterday afternoon in Judge Koh’s courtroom listening to arguments on whether or not the class action suit against Google based on their scanning of emails for advertising purposes can go forward. This is the case that made news a few weeks ago because Google stated in their brief that users have “no expectation of privacy” in using online services.
That does appear to be what Google is actually saying, based on the arguments by attorney Whitty Somvichian. He made it clear that Google considers everything that passes through their servers, including the content of emails, covered under “information provided to Google” in the privacy policy. Google is arguing that they can read, scan, and use that content to display ads and anything else they consider to be in the normal course of business.
I have pages and pages of notes but I have some paying work to finish before I can focus on writing up the case. There were multiple reporters and bloggers in the courtroom, but I’ve not found many article. Some I’ve found are:

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Changes at Gmail

As I’ve said before, I can usually tell when some ISP changes their filtering algorithm because I start getting tons and tons of calls about delivery problems at that ISP. This past month it’s been Gmail.
There have been two symptoms I’ve been hearing about. One is an increase in bulk folder delivery for mail that previously was reliably hitting the inbox. The other is a bit more interesting. I’ve heard of 3 different mailers, with good reputations and very clean lists, that are seeing 4xx delays on some of their mail. The only consistency I, and my colleagues at some ESPs, have identified is that the mail is “bursty.”
The senders affected by this do send out mail daily, but the daily mail is primarily order confirmations or receipts or other transactional mails. They send bi-weekly newsletters, though, exploding their volume from a few tens of thousands up to hundreds of thousands. This seems to trigger Gmail to defer mail. It does get delivered eventually. It’s frustrating to try and deal with because neither side is really doing anything wrong, but good senders are seeing delivery delays.
For the bulk foldering, Bronto has a good blog post talking about the changes and offering some solid suggestions for how to deal with them. I’m also hearing from some folks who are reliable that Gmail may be rolling back some of the bulk foldering changes based on feedback from their users.
So if you’re seeing changes at Gmail, it’s not just you.

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