Gmail promises “no reasonable expectation” of privacy

UPDATED: Google admits that third-party email users should not be surprised that company processes communication

Topics: Google, gmail, Privacy, Transparency, email, reasonable expectation, fourth amendment, Advertising, Internet, , ,

UPDATED BELOW with statement from Google, clarifying that Gmail users do have privacy protections, but that “third party law” applies when it comes to non-Gmail users’ expectations of privacy.

Original post: As I have noted here before, it is worth remembering that as recently as 2009, Google CEO Eric Schmidt said, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”

Schmidt expressed more here than a personal opinion, he revealed views on privacy and transparency that underpins his company’s ideology — one that shows scant regard for Google user privacy. On Wednesday it was revealed in the form of a legal filing, uncovered by Consumer Watchdog: Email users have “no reasonable expectation of privacy” for information passed through Google’s email server.

The comment from Google’s lawyers came out in a class action lawsuit in June which the Internet leviathan is being challenged over Gmail’s feature for scanning emails to target ads. Plaintiffs claim that Google’s practice goes against wiretap laws, but the Google’s lawyers argued otherwise, stating:

Just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use web-based email today cannot be surprised if their emails are processed by the recipient’s [email provider] in the course of delivery. Indeed, ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”

However, millions of Google users had not assumed that everyday their electronic communications were being systematically scanned and read. But Google’s attorneys went so far to say that this is simply “ordinary business practice.”

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John Simpson, Consumer Watchdog’s privacy project director, told the Guardian that Google’s argument is deeply flawed:

Google’s brief uses a wrong-headed analogy; sending an email is like giving a letter to the Post Office. I expect the Post Office to deliver the letter based on the address written on the envelope. I don’t expect the mail carrier to open my letter and read it.

Similarly, when I send an email, I expect it to be delivered to the intended recipient with a Gmail account based on the email address; why would I expect its content will be intercepted by Google and read?”

Now, any close follower of Google’s transparency reports and general modus operandi when it comes to compliance with government demands for user data will not be surprised by this revelation. Furthermore, it is no secret that Google traces user search activity in order to provide targeted advertising. However, millions of Internet users — unattuned to the vagaries of Google’s approach to transparency and privacy — would have assumed their emails were treated as private. Hopefully the current lawsuit will help inform more Internet denizens that if they’re seeking confidentiality and protection from government and corporate surveillance, Google is no place to turn.

UPDATE: Salon received a comment from Google clarifying the issue of privacy that arose in the class action lawsuit. Google points out that it is not Gmail users who can expect no privacy protections, but rather Google’s attorneys argument about email interception by a third party applies to non-Gmail users, who have not signed Google’s terms of service. Google stated:

“We take our users’ privacy and security very seriously; recent reports claiming otherwise are simply untrue. We have built industry-leading security and privacy features into Gmail — and no matter who sends an email to a Gmail user, those protections apply.”
The Verge specified the particular issue at hand in terms of Google and the application of privacy protections:
[The Google attorney was quoting] from the 1979 Supreme Court case Smith v. Maryland, in which the court upheld what’s called the “third-party doctrine,” saying that once you involve a third party in communication, you lose legally enforceable privacy rights. (This is an extremely controversial notion, but for right now, it’s the law.) Google’s argument is that people who email Gmail users are necessarily involving Gmail’s servers in the mix, kicking the third-party doctrine into effect. This is pretty basic stuff.

Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

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