The California-based advocacy group Consumer Watchdog has this week highlighted an interesting claim emanating from Google’s (GOOG) legal team, with which it is doing battle over data mining. In a motion to dismiss Consumer Watchdog’s class action lawsuit against it, Google said no e-mail users can expect privacy.
The lawsuit is about the fact that Google scans Gmail e-mails for keywords so it can better target ads at the user. Many of the plaintiffs in this class action suit are Gmail users, and Google’s argument is that they signed up to its terms (which I’m sure they all read, right?). However, regarding those plaintiffs complaining about their e-mails to Gmail users being scanned and processed, Google’s lawyers said (PDF):
The state law wiretap claims of the Non-Gmail Plaintiffs fail for similar reasons. While the non-Gmail Plaintiffs are not bound to Google’s contractual terms, they nonetheless impliedly consent to Google’s practices by virtue of the fact that all users of email must necessarily expect that their emails will be subject to automated processing.
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 communications 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.’ Smith v. Maryland, 442 U.S. 735, 743-44 (1979).
That’s some awesome reasoning right there, especially considering that the Smith case was about telephony—not, in 1979, a rich field for the kind of data-mining that Google performs on its users’ e-mails today.
I’m no expert in U.S./California privacy law—to be clear, I’m not a lawyer, period—but, while it is certainly true that e-mail has inherent insecurities, Google’s line of argument seems problematic on several levels. For one, secure e-mail does exist if end-to-end encryption is in place and crucially, if the e-mail provider isn’t storing e-mails in unencrypted form so it can scrape it for keywords. Does Google stand by Consumer Watchdog’s interpretation that “if you care about your email correspondents’ privacy don’t use Gmail”?
But where might Gmail users have got the crazy idea that their Web mail correspondence is private and secure in the first place? Perhaps from their provider’s promises, such as these examples:
• “You have a variety of tools that can help keep you safe and keep your information private and secure.”
• “We’re constantly working to ensure strong security, protect your privacy…”
• “Our top priority is to protect the privacy and security of our users.”
• “This behavior is designed to help protect your privacy…”
• “We want to protect your privacy…”
And so on.
It does look as if Google is trying to have its cake and eat it, too. If the company is so sure that e-mail users would be nuts to expect privacy, perhaps it should stop promising it to them.
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Meyer is a senior writer for GigaOM.
