Google is Reading Your Gmail

NEW YORK (MainStreet) — When was the last time you emailed yourself something from work? Or had a private moment over chat, the kind you'd like to keep just to yourself? If you're like most of us the answer is "relatively recently." According to Google, however, that's just too bad. All of that information, from your confidential memos to your love letters, is now fair game.

You see, in a recent filing in federal court, the Internet giant announced that no one should expect privacy when sending messages to or from a Gmail account.

"Just as a sender of a letter to a business colleague cannot be surprised that the recipient's assistant opens the letter," Google wrote in a brief to the court, "people who use web-based email today cannot be surprised if their communications are processed by the recipient's ECS provider in the course of delivery. Indeed, 'a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.'"

The phrase "legitimate expectation of privacy" is a loaded one, as it's only one (arguably equivalent) word away from the legal standard of "reasonable expectation of privacy," the test for whether or not third parties and government agents can search through your belongings. An argument that its users have no legitimate expectation of privacy over the contents of their emails is, essentially, arguing that the contents of any message to pass through Google's servers is fair game for anyone to whom the Internet giant feels like selling it, whether that be private companies, government agencies or vengeful ex-girlfriends.

This argument applies to both users of the popular Gmail service and anyone who sends them a message. Google considers an address ending in gmail.com fair warning: anything you say will be read, and not just by the recipient.

"Google has finally admitted they don't respect privacy," said John Simpson, the Privacy Project Director for Consumer Watchdog. "People should take them at their word: if you care about your email correspondents' privacy, don't use Gmail."

The motion was filed in the case In re Google Inc. Gmail Litigation, a class action case suing Google for invasion of its users' privacy. The case argues that Google's automated scanning process, used to target advertising, violates both state and federal wiretapping laws. Although no one should be surprised to learn that the company scans email messages to target advertising--it has made absolutely no secret about this business practice--Google's recent declaration goes far beyond a mere robo-reader.

"Google's brief uses a wrong-headed analogy," Simpson said. "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."

 

The cases which Google uses to support its argument may bear this out. The Internet company relied on the 1979 case Smith vs. Maryland, in which the court ruled that telephone customers have no expectation of privacy to the number they'd dialed, as they'd handed that information over the phone company to make the connection. Drawing a parallel to the information age, a much closer equivalent may be the email address of the recipient, not the contents of your conversation.

Of further concern is just how far Google believes this argument will stretch. Although most users would probably agree by now that entries in the search engine and Maps software are open secrets at best, what about programs like Google Drive? Does the company consider those entrusted to third parties as well? What about attachments to emails, or your calendar entries?

Arguably anything at all stored on Google's servers has been "turned over" to a third party. Does the company consider it open season across the board?

Perhaps the best answer comes from the company itself, revealed in the case's complaint: "We know where you are. We know where you've been. We can more or less know what you're thinking about... If you have something that you don't want anyone to know maybe you shouldn't be doing it in the first place."

A hearing on this argument will be held before Judge Lucy Koh in the U.S. District Court in San Jose, California on September 5.

--Written for MainStreet by Eric Reed, a freelance journalist who writes frequently on the subjects of career and travel. You can read more of his work at his website www.wanderinglawyer.com.

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