This week the nonprofit Consumer Watchdog is drawing media attention to a legal argument pressed by Google’s attorneys in a motion to dismiss a class-action lawsuit against the company. The class complaint alleges that Google “unlawfully opens up, reads, and acquires the content of people’s private email messages.” Google does this, of course, to target its advertising and thus increase revenue. The plaintiffs say that this violates the Electronic Communications Privacy Act, which restricts wire taps on electronically transmitted data, as well as various state laws, including California privacy laws.
Google argues, however, that even people who do not use Gmail “impliedly consent to Google’s practices by virtue of the fact that all users of email must necessarily expect that their emails will be subject to automated processing.” Consumer Watchdog calls this argument “stunning.”
That doesn’t mean the argument isn’t troubling. Here’s Google’s argument in full:
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). In particular, the Court noted that persons communicating through a service provided by an intermediary (in the Smith case, a telephone call routed through a telephone company) must necessarily expect that the communication will be subject to the intermediary’s systems. For example, the Court explained that in using the telephone, a person “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business.” Id. at 744 (emphasis added).
Google goes on to cite state-court decisions about email users implicitly consenting to the recording and processing of their emails.
At first glance, I think that Smith and the state-court cases are distinguishable. Implied consent to message processing is different than implied consent to use of a message’s content for a third parties’ own use (as with Google’s data-mining for profit). Consumer Watchdog’s Privacy Project director, John Simpson, makes a similar argument: “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?”
To be sure, even if it succeeds, this argument shows a certain callousness toward Internet privacy, along the lines of Larry Ellison’s comments this week on NSA surveillance. Anyways, the plaintiffs must have anticipated this defense by Google, so it will be interesting to see where this heads.
The bottom line is that we all need to start viewing the Internet as more public than we like to think.