State Sen. Liz Figueroa (D-Fremont) late Tuesday put the finishing touches on the bill, SB 1822, in a bid to bring the measure to a vote in front of the full Senate before the legislature recesses on Friday.
According to a draft of the revised bill seen by CNET News.com, the new bill has dropped a provision that would have required Google to win the full and informed consent of non-Gmail users sending e-mail to the service--a hurdle that Gmail advocates widely assumed would be impossible to meet.
In addition, it explicitly allows e-mail and instant messaging providers to mechanically scan the content of messages in order to deliver advertisements, provided they meet certain restrictions on how the data is used. Information gleaned from e-mail scanning cannot be retained, shared with a third party, or shown to any employee or other "natural person," the draft states. In addition, e-mail providers must permanently delete messages at the request of customers.
"A provider of electronic mail or instant messaging service may review, examine or otherwise evaluate the content of a customer's incoming, outgoing or stored e-mail or instant messages only if the review is for the automated and contemporaneous display of an advertisement to the user while the user is viewing the e-mail or instant message," the draft reads.
The bill changes come as Google is seeking to fend off an unexpected backlash against Gmail, a Web-based e-mail service that turned heads when it was unveiled in late March with an offer of 1GB of free storage. Google touted the service as a reinvention of e-mail based around a searchable database archive, rather than traditional file folder systems--but some critics raised concerns that Gmail could subject consumers to unwarranted privacy risks.
First, the amount of storage offered meant that customers might never again have to delete e-mail, eventually creating a vast repository of personal correspondence that might be subject to review by police and other outsiders. Second, Google proposed serving ads into messages based on their content, requiring customers to agree to let the company scan their in-boxes for keywords.
Figueroa said the bill changes do not mark a reversal from the bill's original intent. California already requires third party consent under the state's anti-wiretap law, she said, and therefore it was not necessary to include the provision in her bill. Three non-profit groups have asked the California attorney general to review the anti-wiretap law and issue an interpretation regarding third party consent in regard to e-mail services including Gmail, although some legal experts believe the claim is weak.
"This will be first law in the nation to ensure that this type of technology is never used to create files on consumers," Figueroa said in an interview. "It forbids e-mail providers from retaining personally identifiable information that is obtained from the use of the technology; it forbids human access to the information; and forbids the transfer of information to third parties. And it requires that when consumers delete e-mail, the file is deleted and is not retained somewhere."
A Google representative declined to comment on the revised bill, saying the company was still reviewing the changes.
Technology lobbyists said the changes appeared to be a win for Google, reversing key aspects of a bill trumpeted barely a month ago as a tool to prevent the search engine giant from "secretly 'oogling' private e-mails." But most agreed that the bill would be bad news for technology companies operating in the state if it becomes law.
"Our membership is still upset with this bill," said Roxanne Gould, vice president of California government and public affairs for technology trade group the American Electronics Association. "It would appear to have many unintended consequences, for example, preventing filtering aimed at preventing minors from viewing adult material."
