The ongoing legal debate over digital privacy pits public advocacy group Consumer Watchdog against technology giant Google.
In the document, Google informs users that electronic correspondence received by its servers, even if originating from a non-Gmail account, can be fully accessed by the company, and may be searched for the purposes of—among others—selling targeted advertisements
Brought to light by the public advocacy group Consumer Watchdog, the brief is a motion to dismiss the accusations of the Court, and asserts that emails sent from a non-Gmail to a Gmail account can expect “no legitimate expectation of privacy.” (Gizmodo.com)
This phraseology appears in the 1979 Supreme Court ruling Smith v. Maryland, which reads:
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 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.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979).
Google uses the ruling as one of many legal precedents in the brief, which presses for its continued ability to automatically scan and process all email content it receives.
John M. Simpson, director of Consumer Watchdog’s Privacy Project, has responded, noting that:
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? (RT News)
In the brief, Google’s lawyers also contend that there is no “illegal interception” of private information, per the terms of the Wiretap Act and its associated statutes, or that emails are even “confidential communications” as defined under the Act. It adds that to interpret its automated scanning process in such a way would effectively “criminalize” the most basic processes of their email service. On this subject, the brief reads:
In practice, plaintiffs’ theory would prevent ECS providers from providing a host of normal services that Congress could not possibly have intended to criminalize as an illegal interception. For example, an ECS provider could not allow users to sort their emails using automated filters because any such system would require scanning the contents of the emails being delivered to the user, thus running afoul of plaintiffs’ theory. Nor could an ECS provider provide even basic features like allowing users to search their own emails for particular key terms because doing so would, again, involve the scanning of email content.
While Google’s attorneys continue to dismiss the privacy model upheld by Consumer Watchdog and argued for by the lawyers of the Northern District of California, the alternatives for a viable pay-for-use email service featuring encryption and presumably higher levels of overall security appear to be shrinking. Two companies, Texas-based Lavabit (www.lavabit.com), which was allegedly used by former National Security Agency whistleblower Edward Snowden, and Silent Circle (www.silentcircle.com) have recently announced a suspension of their encrypted email services.
The future resolution of this case has the potential to impact the ways in which information confidentiality and even attorney-client privilege are construed. Particularly if one or more of the parties involved happens to be exchanging electronic correspondence over Google’s Gmail servers.
The full text of Google’s motion is available here.