The Two-Way
3:00 pm
Wed August 14, 2013

Gmail Users Shouldn't Expect Privacy, Google Says In Filing

Originally published on Wed August 14, 2013 3:13 pm

People who use Gmail and other free email systems have no reasonable expectation of privacy, according to papers filed in a U.S. district court by lawyers for Google. The filing was made in June, when Google moved to dismiss a case accusing it of breaking federal and state laws by scanning users' emails to help target its advertising campaigns.

In making its case, Google compared sending an email to other types of communications where privacy cannot be expected:

"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)."

The company's attorneys said those same expectations would also hold for any non-Gmail users who send a message to a Gmail address. And it says that anyone sending an email is essentially giving their implied consent to automatic processing.

As Eyder and Scott reported for The Two-Way last week, the U.S. government also cited the Smith case as a precedent in its pursuit of telephone metadata records.

Noting that its Gmail service has more than 400 million users worldwide, Google says that it's able to offer the service free of charge because of the revenue it gets from advertising. And, the company says, its system is no different from other free email providers.

The court papers were posted online by the Consumer Watchdog site, which called their contents "a stunning admission." Officials for the group recommended not using Google's service — but it did not name any viable alternatives.

As the Techspot website notes, "The motion was uncovered less than a week after secure e-mail services Lavabit and Silent Circle closed down shop due to intense pressure from U.S. authorities. In their absence, Internet entrepreneur Kim Dotcom vowed to release a secure e-mail service that would run on a non-US-based network."

The publication of the document, which Consumer Watchdog posted online, comes after weeks of news about the roles large Internet companies are accused of playing in broad surveillance programs run by the U.S. government. The Lavabit service was used by former NSA contract worker Edward Snowden, as Eyder reported last week.

In the court filing, Google's attorneys say that Gmail messages are processed in ways that are "completely automated and involve no human review."

The company's attorneys also suggested that the public is savvy enough to know how their emails are handled, and that the information in them may be read by third parties.

"As numerous courts have held, the automated processing of email is so widely understood and accepted that the act of sending an email constitutes implied consent to automated processing as a matter of law," Google's attorneys wrote.

The company's court filing also says the U.S. Electronic Communications Privacy Act "precludes liability where a single party to a communication consents to the alleged 'interception,' and all Gmail users contractually agree to the scanning of email."

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