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What Google is fighting about, and why

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Google argued on Wednesday that the Electronic Communications Privacy Act of 1986 applies to the company and the case should be dismissed.

The case, which is being considered by the court of appeals for the U.S. District Court for the Northern District of California, centers on emails from 2007 to 2011 from a Google executive who has since been fired. The executive’s attorneys argue that the executive’s job required him to search through large amounts of content. The emails were uncovered after a 2012 investigation by the company’s audit committee.

Here is the background on the case, the reasons and the methods that Google used to fight back.

What is the Google Antitrust Lawsuit?

The case began in 2012 after Google’s audit committee examined payments from the company to a sales firm.

The company found that the Google Mail contract included an additional clause that allowed the company to transfer old emails to the backup servers at Google. It also included a clause that allowed Google to get the emails’ private content from the backup servers at any time.

Google immediately froze the ex-employee’s email. To recover the information, Google would have had to go through the ex-employee’s personal email accounts and delete all the content on those accounts.

Google said it couldn’t do that without going through user’s personal accounts and deleting the content. The case centered on whether Google should be able to request private content from users’ personal email accounts.

Why Google Is Suing

Google’s decision to fight the case has stymied an investigation that was launched two years ago by the U.S. Department of Justice. The Department of Justice asked the search engine giant to turn over documents relating to its policies, and then provided Google with similar documents.

Google refused. “We believe that ECPA jurisdiction does not extend to collection of IP from attached devices, particularly devices where that collection is, or appears to be, done without the consent of the third party subject to the subpoena,” said a Google spokesman in an emailed statement.

Explaining Google’s arguments, which have been echoed by other companies including Apple, Microsoft and Yahoo, it said: “All this data is compiled, assembled, edited, edited, and returned to the user in an Apple TV or Kindle or with pen and paper, without the user’s consent or any legal process. We have no reason not to believe these customers have subject privacy protections by obtaining their consent to share this information with us.”

As a result, the Department of Justice filed a lawsuit asking the court to cancel a consent agreement that both Google and the Department of Justice reached in April 2011.

The litigation began in 2013 when a California federal judge handed down a default judgment in favor of Google on the basis that the lawsuit had been filed too late. The panel of the court of appeals accepted that motion and ruled in Google’s favor on Wednesday.

What Do Others Say?

What others have to say is summarized in a joint statement by the Electronic Frontier Foundation and the Center for Democracy and Technology, the two organizations arguing on behalf of the ex-employee.

The EFF, Cena and us have weighed in very strongly that the government’s request for any email is presumptively unconstitutional and has rendered this order futile. Google has argued that the ECPA precludes access to “substantially all” emails, but the 8th Circuit’s ruling provides the basis for a different conclusion.

And The Legal Experts

In testimony, Google’s lawyers argued that the ECPA’s purpose was to enable law enforcement agencies to intercept conversations on the telephone. They said the law was designed to stop telephone-company operators from scooping up and intentionally preserving private conversations.

On the other hand, at one point the Justice Department argued that the 1986 ECPA was not intended to specifically address the process Google was relying on to request email content, in particular its email retention policy.

“The ECPA presumes that messages are sent from one place to another and that, if ‘a reasonable person’ is typing a message, he or she cannot possibly view their contents without also storing the message for later viewing,” the Justice Department said in a 2013 motion.

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