Google Says Your Emails Aren’t Private

A key in a lock on an envelope with an open flap containing an @ symbol

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People who use non-Gmail accounts to email with a Google user have no expectation of privacy when it comes to the content of their messages, the tech behemoth argued in a recent court filing.

The company was responding to a class action suit that accused it of violating wiretap laws by using the contents of emails to send targeted ads to people.

Google filed a motion to dismiss the suit, asserting that content that passes through a third party loses any expectation of privacy by its creator.

“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,” the company said. “Persons communicating through a service provided by an intermediary . . . must necessarily expect that the communication will be subject to the intermediary’s systems.”

If Google couldn’t scan the contents of email, the company said, it would also cripple its ability to filter out spam and viruses. In short, “Non-Gmail users who send emails to Gmail recipients must expect that their emails will be subjected to Google’s normal processes as the [email] provider for their intended recipients,” and “all users of email must necessarily expect that their emails will be subject to automated processing.”

 

Fourth Amendment Protections?

The lawsuit in question was about Google’s use of targeted ads. Would the same expectation of privacy guidelines apply to law enforcement seeking email or other types of content without a warrant?

An attorney who filed a similar suit in Maryland made the connection. “There are parallels between our client’s case and the case involving the government surveillance of private citizens,” Maryland personal injury lawyer Mike Slocumb said in a statement. “Search engine companies are monitoring private emails, and the National Security Agency is collecting domestic telephone data.”

While privacy protections do vary depending on who is accessing the information, in general the notion of losing expectations of privacy when information is turned over to a third party would apply to law enforcement actions as well.

A good place to look for clarification about what information Google will and will not release is found in the company’s own privacy policy. As a general rule, it’s wise to remember that anything you write in email could be accessed in some way, maybe by subpoena but certainly via warrant. 

The line between privacy and the needs of law enforcement is muddled because the rules are currently based on outdated laws that didn’t envision modern-day technology. 

“The problem is that the Supreme Court decisions articulating the reasonable expectation of privacy doctrine date back to the 1960s and 1970s, and the Electronic Communications Privacy Act dates back to 1986, all long before we had any understanding of the Internet or email or how any of these technologies might work,” says Catherine R. Gellis, an attorney who specializes in Internet law. “We keep trying to force them into antiquated legal frameworks and it’s not quite working.”

“At the same time, though, in updating the law we would want to be careful not to promote privacy at the expense of innovation,” Gellis says. “The consequences of the government intercepting communications are much different than when a technology vendor develops a tool to manage them. We shouldn’t necessarily paint both situations with the same legal brush.”

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