August 20, 2013
In the course of a class-action lawsuit filed against Google in California, the company claimed its Gmail users have “no legitimate expectation of privacy.” Now the internet is in an uproar. Consumer Watchdog, which brought the case, and the quote, to the attention of the web on Tuesday, called the admission “stunning” and “wrong-headed.”
Google’s argument is hardly a surprise, though. The company’s executive chairman, Eric Schmidt, signaled their position in a 2009 interview with CNBC, as the Katherine Mangu-Ward recalled:
If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place,” Schmidt said. “But if you really need that kind of privacy, the reality is that search engines, including Google, do retain this information for some time. And … we’re all subject, in the United States, to the Patriot Act, and it is possible that that information could be made available to the authorities.
Not to put too fine a point on it, but when you look at your Gmail, you see Google display ads which are customized to relate to the content of your emails. And even if you somehow missed it in your inbox, the practice has been covered extensively by the news media. So it’s “stunning” to hear any Gmail user claim to have thought that the content of their emails is private.
Now it is true that Google has claimed that only robots, and not humans, read your email. But that’s only true until the government makes a request for the data.
Indeed, Google’s lawyers aren’t stating their policy on their users’ privacy, they’re citing a 1979 Supreme Court decision, Smith v. Maryland. It is a court decision which helped give law enforcement the right to read your email without a warrant, which is now known as “third party doctrine.”
It’s hilarious/sad that Consumer Reports claims that Google “violates wiretap laws and other state and federal legislation” because it scans emails to filter for spam, check your spelling and serve targeted ads. There is no wiretap law a Federal agency hasn’t already violated with impunity, and I guarantee you it wasn’t to check your spelling. The problem of illegal wiretapping is so bad that two email services which claimed to provide more privacy recently voluntarily shut down in the face of federal investigations. The fates of Lavabit and Silent Circle reveal that this isn’t a Google problem; it’s a federal government one.
If Gmail users want to get upset about something new they learned through this kurfluffle, it should be that they have “no legitimate expectation of privacy” from the government.
The real scandal here is the fact that, as Mangu-Ward put it, “the Court’s interpretation of the Fourth Amendment has swung so far away from the kind of privacy protections most Americans vaguely believe they enjoy that Google is correct, there is no ‘expectation of privacy.’”
This post originally appeared at Doublethink magazine.