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Storm Rages After Google Argues Against Gmail Privacy
Storm Rages After Google Argues Against Gmail Privacy

By Barry Levine
August 14, 2013 1:44PM

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The legal filing by Google cites Smith vs. Maryland, a 1979 case that said "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." That case involved a telephone company that had recorded the numbers dialed from a customer's home telephone. The Supreme Court found that this was not a search that required a warrant.
 

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Privacy? What privacy? That attitude by Google in a recent court filing is causing a storm of controversy that shows at least some users have not yet given up on their right to privacy.

In a motion to dismiss a class-action suit in which Google was accused of violating federal and state wiretap laws because its ad service automatically scans e-mails to determine targeting, the technology giant seemed to have put its foot into it.

Google said that "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 e-mail today cannot be surprised if their communications are processed by the recipient's ECS provider in the course of delivery." ECS stands for electronic communications service.

'Don't Use Gmail'

The legal filing cites Smith vs. Maryland, a 1979 case that said "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." That case involved a telephone company that had recorded the numbers dialed from a customer's home telephone. The U.S. Supreme Court found that this was not a search under the Fourth Amendment, and so no warrant was required. Needless to say, 1979 was a time before the world knew about e-mail.

Privacy watchdogs have been outraged at Google's nonchalance about user expectations. For instance, John M. Simpson, Privacy Project director at Consumer Watchdog, said in a statement that Google "has finally admitted they don't respect privacy." He added that if you care about your e-mail correspondents' privacy, "don't use Gmail."

Simpson also disputed Google's analogy, since "sending an e-mail is like giving a letter to the Post Office," where the expectation is that the Post Office will "deliver the letter based on the address written on the envelope" without the mail carrier opening the letter and reading it.

'Implied Consent'

For its part, Google has contended that the scanning of e-mails to determine appropriate advertising is performed by software and not by humans. It has also said that all users of e-mail should expect that e-mails are "subject to automated processing," and that "numerous courts" have found that the act of sending an e-mail "constitutes implied consent to automated processing as a matter of law."

In other words, e-mail differs from regular mail because the transportation of the message is carried out by software, while the transportation of a letter involves carrying the sealed and unopened envelope. On the other hand, encrypted messages, sealed and then unsealed by permission, are delivered all the time via software.

Google's understanding of the non-privacy of e-mail applies not only to Gmail users who send e-mail, but also e-mail users on other services that send to Gmail.

Its approach to e-mail is, of course, only the tip of its non-privacy iceberg. The company has made it very clear that it intends to know what users want before they do, as its director of engineering Ray Kurzweil has recently said. This involves, for instance, the cross referencing of everything Google knows about a user from any source, which is permitted by a major privacy policy change the company adopted last year.
 

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