Gmail, Google’s e-mail service, went down for about an hour and 45 minutes late Tuesday morning. Google apologized and blamed the outage on server maintenance, but only after millions of users were shut out during work hours. Can those people sue Google over the incident?
Sure, but they’d probably lose. Google’s terms of service, which a user must accept before signing up for Gmail, explicitly state that “you acknowledge and agree that Google may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Google’s sole discretion, without prior notice to you.” It also says that Google isn’t liable for “any loss of data suffered” or “the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted.” In other words, Google has no obligation to save your e-mail.
The mere fact that almost no one bothers to read these terms before clicking “I accept” doesn’t make them invalid. This kind of contract, known as a “clickwrap” agreement, is widely used by software manufacturers and has been upheld by the courts over and over again. According to the Restatement of Contracts, a summary of contract law, “standard form agreements”—that is, simple contracts that apply to a lot of people—should be enforced “without regard to their knowledge or understanding of the standard terms of the writing.” If you don’t read it, that’s your problem.
There are situations in which courts might not uphold a clickwrap agreement. Say one term is especially outrageous—like you have to promise Google your firstborn—and the provision in question is buried in Volume 3, Section 2, Line 478 of a 1,000-page agreement. A judge isn’t going to say, “Whoops! You should have read the whole thing.” Or suppose that Google got people to sign up for Gmail by misrepresenting some aspect of its service—its reliability, say. In that case, a Gmail user could claim that he or she suffered “reliance damages” if Gmail suddenly collapsed.
Some e-mail programs do promise a certain level of reliability. For example, businesses contract with Microsoft Exchange or Lotus Notes to provide e-mail services, which cost money and come with performance guarantees. If they delete all your company’s e-mail, you’ll get some compensation. Gmail does offer a premium service known as Google Apps Premier Edition, which costs $50 a year and promises to be functional more than 99.9 percent of the time. But the basic free service doesn’t have the same guarantees.
Bonus Explainer: Can I back up my Gmail? Yes. There are several ways to do it. One is to simply set up a second Gmail account and automatically forward all your messages to it. That protects you if your primary account gets deleted or corrupted but not if the whole Google system crashes. For that contingency, you can set up your Gmail account to automatically save messages to your hard drive, which you can then access off-line with an e-mail program like Mozilla’s Thunderbird. (See more detailed instructions here.) There’s also a simple program called Gmail Backup that copies your archives to your hard drive with one click.
Got a question about today’s news? Ask the Explainer.
Explainer thanks Tom W. Bell of Chapman University School of Law, Cindy Cohn of the Electronic Frontier Foundation, Michael Froomkin of the University of Miami School of Law, Eric Goldman of Santa Clara University School of Law, and Dan Hunter of New York Law School.
