Gmail says no expectation of privacy, kinda.

Consumer Watch put out a press release yesterday about a court filing made by Gmail that says Gmail users have no expectation of privacy. I pulled a bunch of the docs yesterday, but have had no real time to read or digest them.
For recap users everything I pulled (and stuff other people have pulled) are available at Archive.org.
The initial complaint was filed under seal at the request of Google. The redacted complaint doesn’t tell us a lot, but it’s available for people to read if they’re interested.
The doc everyone is talking about is Google’s Motion to Dismiss. Everyone is up in arms about Google saying, in that filing, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” (page 28, line 9). What no one seems to have mentioned is that this is actually a quote from a case that Google is referencing. The whole paragraph may lead one to a different conclusion.

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).
The same is true of email sent through an ECS provider. 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. See, e.g., State v. Townsend, 57 P.3d 255, 260 (Wash. 2002) (finding that sender of email impliedly consented to interception of his email because “in order for e-mail to be useful it must be” subjected to automated processes, such as being “recorded on another computer’s memory.”); Commonwealth v. Proetto, 771 A.2d 823, 829 (Pa. Super. Ct. 2001), aff’d, 837 A.2d 1163 (Pa. 2003) (“Any reasonably intelligent person, savvy enough to be using the Internet, however, would be aware of the fact that messages are received in a recorded format, by their very nature, and can be downloaded or printed by the party receiving the message. By the very act of sending a communication over the Internet, the party expressly consents to the recording of the message.”);State v. Lott, 879 A.2d 1167, 1172 (N.H. 2005) (sender of instant messages “implicitly consented” to the interception of his communications where he voluntarily sent instant messages knowing that, by the medium’s nature, his messages would be automatically recorded).

It’s not that Google is saying this, Google is quoting a 1979 court case: Smith v. Maryland. Smith v. Maryland says that recording the numbers dialed is not a search and does not require a warrant.
I’m not a lawyer, so I don’t know how applicable Smith v. Maryland is in this case. It seems to me that a phone number is closer to the email address rather than the entire content of the email. But, I can also see that any email provider has to “record” the entire body of an email in order to transmit it.
What I can tell you is that I disagree that Gmail has somehow broken new ground in privacy violations and being arrogant about it. They’re quoting a 30+ year old court case, which has been referenced in thousands of other cases. This isn’t new, it’s business as usual.

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Gmail's new inbox tabs. News at 11.

Yesterday Gmail announced a change to their UI. This new UI lets users configure tabs in their inbox for different sorts of email. This change has greatly upset some marketers. Yesterday I heard it described as war on marketers, as a conspiracy to stop all email marketing and as a horrible injustice to legitimate marketers. I even saw a few people call for an organized boycott of Google AdWords.
While I do appreciate many of us don’t like change, I can’t quite jump on the histrionic bandwagon. This change isn’t Google declaring war on marketers. Google is, at the end of the day, a marketing company. They live and die by marketing dollars. And before you ask, I don’t really think email marketers can organize a boycott that actually has any real impact on Google’s bottom line and causes them to change their interface.
There are a lot of reasons I don’t think this is the actual end of the world and that marketers should just take a deep breath and chill.
The tabbed interface is really just Priority Inbox v. 2. Priority inbox was rolled out a few years ago and there was quite a bit of noise about how that was going to make email marketing more difficult. While getting email to the inbox at Gmail is a challenge for many marketers, I don’t think Priority Inbox is the underlying reason. I think Gmail has gotten a lot stricter on filters, particularly content filters thus making it harder for borderline mail to get to the inbox instead of the bulk folder.
The tabbed interface is just another way of organizing mail in the inbox. Mail is not moved to any different folders, it’s still in the inbox. Users can enable or disable the settings as they desire and all of the mail stays in their inbox.
New Gmail Tab configuration The interface is not on by default. Users have to actually go in and turn on the setting. For users who don’t set up filters anyway, it’s unlikely they’re going to take advantage of the tabs. I did take a look at the configuration settings. Gmail tries to make it clear what kinds of mails will end up in what tabs by telling you what From: addresses currently in your inbox will end up in a tab if you enable it.
Overall, I don’t think this is really going to cause horrible repercussions to email marketers. In fact, this does seem to offer some benefit to email marketers that use consistent branding. According to Mickey Chandler at Exacttarget, the interface “not only display[s] the number of new emails in the tab, but [also displays the] names of the brands whose mails are in that tab.” This is a good thing for marketers, who now have the chance to get their name in the inbox interface.
One thing I did notice, too, was that when I enabled tabs, Gmail presented me with more advertising in the “promotions” tab and provided no advertising in any other tabs.

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Spamming to hide fraud

An interesting article at NetworkWorld last month, describing spam bombs to victims of fraud and identity theft to hide the transactions and notifications from financial institutions.

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One letter off…

I’m working on a blog post about the new Gmail tabbed inbox and the messages Gmail is inserting into the promotions tab. The messages aren’t showing up on most of my accounts, so I logged into an infrequently used account of mine. Ads are there, I got my screenshots and some data about the behaviour of the messages. So far so good.
I also discovered that at least two other women are using my address. One of them apparently ordered a bunch of wedding stuff from David’s Bridal shop using my email address. I hope Kirstie got her special order in time.
The other case is more interesting. I found dozens of emails in my inbox from what appeared to be friends including me in their email forward chain.
The Comic Sans. The FW:FW:FW:FW:FW subject lines. The horribly drawn cartoons. The inspirational messages. The prayer requests. The invites to bridge night. The followup demands that I reply to their invites for bridge night. The sad emails that I didn’t go to bridge night. There were emails from grandchildren. Questions about where I’d been and if I moved. Prayer chains. The messages go on and on.
Looking back through my inbox, this has been going on since sometime late in 2012. (Told you this was an infrequently used account). I looked and looked and I think I figured out what happened. A woman named Helen appears to to have an email address one letter off from mine (string@ vs stringsstring@) and one of her church friends tried to reply to her and dropped the ‘s’ from the email address. Once she did that, everyone else just kept hitting “reply all” and are including me in their forward chain.
It’s not commercial, it’s not spam. It’s just a bunch of people mistyping an email address and sending mail to someone they don’t know. I’m kinda glad it was a bunch of church ladies rather than Carlos Danger sending … well… Carlos Danger type messages.
People get email addresses wrong sometimes. It happens (ask me about the time I almost got my mailserver blocked because I mistyped an address while sending mail to a blocklist maintainer and hit a trap address by mistake…). The problem is that it can overwhelm an uninvolved person’s mailbox, even when it’s not commercial. Sure, if I was logging in to this account more often I’d probably have shut it down, but if they were paying attention they would have realized Helen is never replying to anything they send.
I kinda feel the same about commercial mailers that send me mail over and over and over again. I never open it, I never reply to it, I never respond to it. I wonder if there is actually anyone actually sending the mail, or if there’s just a lonely mailserver bricked up in a wall somewhere continually sending out spam.
Don’t be the bricked up server in the wall. Pay attention to what your recipients are doing.

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