Evan Schuman's StorefrontBacktalk

Let’s say you are upset with AT&T, because it decided to “throttle” your cell phone data usage, and you decide that you either want to arbitrate the dispute or file a claim in small claims court. AT&T has listed a host of “prohibited” activities that its customers may not do—including copyright infringement, harassment, etc. Indeed, the AT&T data contract by its terms only allows non-corporate users to use data for two things—E-mail and Internet browsing. Everything else is prohibited.

The AT&T “contract” has a little clause that says, “AT&T may, but is not required to, monitor your compliance, or the compliance of other subscribers, with AT&T’s terms, conditions or policies.” Because the policies relate to both the amount and type of data and voice used, in addition to the content of the messages sent and received, presumably AT&T could use this clause to listen in on the telephone calls, read the E-mails and capture the text messages, Internet browsing habits, photos sent and received, apps downloaded or virtually any other activity of its customers, should they have the temerity to sue AT&T.

Indeed, federal law reinforces this “right” of the phone company, expressly excluding it from the provisions of the wiretap law, 18 USC 251. The statute permits “an operator of a switchboard, or an officer, employee or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service.”

Thus, if a phone company, ISP or other “provider of wire or electronic communication service” feels that it is helpful to protect the rights or property (profits?) of the company by listening in on phone calls, reading E-mails or intercepting text messages, then the law and the contract appear to permit it. And the unwary litigant who sues or arbitrates against AT&T may find his or her intimate E-mails, browsing activity and other personal information used against him or her. Indeed, merely the threat of such use may scare away potential litigants, where the remedy available in small claims court may be only a few hundred dollars.

Google’s new privacy policy, for example, provides that “We use the information we collect from all of our services to protect Google.” The policy goes on to note, “We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to: enforce applicable Terms of Service, including investigation of potential violations. Detect, prevent or otherwise address fraud, security or technical issues. Protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.”

So, if you sue Google for any reason, you may expect that Google may (but not necessarily will) use everything it knows about you against you.