Gmail: You Weren't Really Expecting Privacy, Were You?
By Molly Wood, CNET.COM
The Internet is in a panic over a Google legal brief that claims Gmail users have no expectation of privacy when they use the service. Good headline, but let's be honest: that's the entire point of Gmail.
So, I just finished reading Google's motion to dismiss in response to a lawsuit alleging that its e-mail scanning violates California privacy laws. And I'll say this: those Google lawyers are towering writers, indeed. But on to the point: did Google really argue in its rebuttal to the lawsuit that Gmail users do not and never should have an expectation of privacy when they're using Gmail? I mean, they actually just came out and said it like that!?
Well, yes. But if you read the brief, or the Gmail Terms of Service, or even stop and think about what Gmail actually does, that shouldn't come as a surprise, and it's nothing Google hasn't baldly stated before. I'm not saying I like it, but it's definitely not news. It's actually just how Gmail works.
So, yes, Google is saying that you don't have an expectation of privacy when you're using Gmail. But what Google is also saying is that you knew you didn't have an expectation of privacy when you signed up, because when you signed up you agreed to contextual advertising, to indexed, searchable email, to spam filters, and to content filters like Priority Inbox.
Those features, necessarily, involved automated scanning of e-mail. And, Google argues, the Electronic Communications Privacy Act specifically permits such indexing and automated scanning by email providers because it's "necessary" for them to continue to deliver you free, Web-based email (that they use as a vector for serving you ads).
Now, there are some remarkable notes that should be chilling to anyone who's not on Gmail but has friends who are: Google's brief points out that "[u]nder federal law, the consent of a single party to a communication is complete defense to any liability and so the consent of the Gmail user alone is sufficient to bar a claim." That seems problematic, from a privacy perspective, or at the very least, legitimately surprising.
But again, this is Google we're talking about. The company that could probably easily create a full-scale digital replica of you that would talk like you, look like you, know everything about you, and maybe even be way smarter than you.
Google reads your e-mail, knows what's in your calendar, looks at your photos, and knows who your friends are, and that's just via its in-house services. When you include the breadth of its search, Google knows everything about you that's public information, from your address to all your online profiles to your marital status and much, much more.
The news here is not so much that you don't have an expectation of privacy when you use Gmail. The news is that anyone, anywhere, thought that they did.
Maybe, if these headlines are good for anything over time, it will be that it's actually kind of helpful to read Google's position in plain English like that, because it clarifies your choices for you.
You can decide that you really don't care whether the giant Google server banks "read" your email and give you contextual ads and put your spam in a spam folder and prioritize your communications (I, for one, don't particularly care). Or, you can decide you really, really do care (and should have read the ToS from the start) and you can go right ahead and dump Gmail for something like BitMessage, which will actually protect your communications for real (hat tip, No Agenda).
As for your friends who only use Gmail, I guess it's carrier pigeon time.
Molly Wood is an executive editor at CNET, author of the Molly Rants blog, and host of the tech show, Always On. When she's not enraging fanboys of all stripes, she can be found offering tech opinions on CBS and elsewhere, and offering opinions on everything else to anyone who will listen.
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