Is there a “service provider exception” under California wiretapping law?
Unlike in the federal laws, there is no exception in the California wiretapping law for ISPs. Even if there were, Google would be unlikely to qualify for it with their Gmail service, at least under the narrow formulation of the exception. Under a formulation like that in the Wiretap Act (ยง 2511) (which exempts a service provider for interceptions “in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service”), content analysis for the purposes of targeted marketing is not “a necessary incident” to the provision of e-mail service.
