Press Suckered By Anti-Google Group's Bogus Claim That Gmail Users Can't Expect Privacy

from the no-expectation-of-accuracy dept

Okay, so as a bunch of folks have been sending over today, there’s been a bit of a furor over a press release pushed out by Consumer Watchdog, a hilariously ridiculous group that has decided that Google is 100% pure evil. The “story” claims that Google has admitted in court that there is no expectation of privacy over Gmail. This is not actually true — but we’ll get to that. This story is a bit complex because the claims in most of the news coverage about this are simply wrong — but I still think Google made a big mistake in making this particular filing. So, first, let’s explain why the coverage is completely bogus trumped up bullshit from Consumer Watchdog, and then we’ll explain why Google still shouldn’t have made this filing.

First off, you may recall Consumer Watchdog from previous stunts such as a putting together a hilariously misleading and almost 100% factually inaccurate video portrayal of Eric Schmidt, which was all really part of an effort to sell more copies of its founder’s book (something the group flat out admitted to us in an email). They’re not a consumer watchdog site — they’re a group that makes completely hogwash claims to try to generate attention on a campaign to attack Google.

The press release from Consumer Watchdog fits along its typical approach to these things: take something totally out of context, put some hysterical and inaccurate phrasing around it, dump an attention-grabbing headline on it and send it off to the press. In this case, it claimed that Google had said in a court filing that you have no expectation of privacy with Gmail. That got a bunch of folks in the press to bite with wildly inaccurate headlines:

The first three of those headlines are simply flat-out factually incorrect. I mean, not even close, and it’s fairly incredible that those come from the three more “established” or “mainstream” news publications. The last three are slightly more correct, but still completely miss the point. The best debunking of these claims so far comes from Nilay Patel at the Verge who breaks down the details. The filing, which is from over a month ago, is a response to an absolutely, monumentally bogus class action lawsuit filed against Google, arguing, hilariously, that it’s a violation of wiretap laws to put ads next to emails based on the text of those emails. No, seriously.

As Patel points out, first, if you put the argument back into context, it’s not even about Gmail users — as the top three headlines above falsely state. Google is arguing that non-Gmail users are consenting to the fact that when they send an email, the ISPs who receive the email will automatically process them. This should not be controversial. At all. Without that concept email doesn’t work. As the filing states (which the folks hyping this ignore):

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.

In other words, there’s no “there” there. All Google was arguing was that courts have held that if you are using a communication service, there’s a perfectly reasonable (in fact, expected) recognition that the service provider will have the right to process some information about that communication. In the context of the case that Google cites, the infamous Smith v. Maryland, the argument is that the business provider is reasonably expected to be able to track the user’s activity. That’s not controversial. The controversial step that Smith v. Maryland then makes is to argue that because the service provider has a right to that basic information it means that the end user has no expectation of privacy with regards to the government getting access to the same info. That’s the problem with Smith v. Maryland — the failure to recognize that massive difference between me (1) consenting to let my phone company record who I make phone calls to in exchange for the ability to make calls and (2) the expectation that it’s okay for the government to collect that very same info without a warrant.

Google’s citation of Smith v. Maryland is to make the first half of that argument — showing that courts recognize the obvious: that when you use a communication service, there are certain aspects of information that you know the service provider is going to have access to. Without that you don’t have email, or (realistically speaking) the internet.

So, this is all much ado about nothing.

Except… I still think it was a mistake for Google to use this legal argument, and I’m somewhat surprised Google’s legal team let this go through in place. First, Google does not need this citation to make this point. There are other cases that can make this point effectively without touching on the government spying aspect. But, the real reason why this is a mistake is that Google has given fairly strong indications in recent statements that it’s willing to fight back against certain government requests for user info (and that it’s done so in the past). In those cases, the government is absolutely going to cite Smith v. Maryland as its evidence that users have no expectation of privacy in their communications and now they’ll also point out that Google cited the case approvingly. Google will want to argue that Smith v. Maryland is outdated law and was decided wrongly and/or in a different time under a different technology ecosystem. And this is a very, very strong argument that has a good chance of winning. But the ability of the government to point out that Google has, in other cases, cited the Smith precedent approvingly — even if it was really only part of the Smith precedent — could undermine their arguments against Smith in future cases down the road.

Either way: the freakout here is totally manufactured by a bogus, laughable group that is spreading ideas that would do massive harm to the internet based on a near total ignorance of how things work. Yes, people are on edge given the NSA revelations, but this “gotcha” is no “gotcha” at all. It’s just more evidence of the sheer duplicity of Consumer Watchdog. That said, it was still short-sighted for Google to make this claim in a filing. They didn’t need the citation, and while it may help them win this ridiculous class action lawsuit, it may come back to bite them down the road in more important cases.

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Comments on “Press Suckered By Anti-Google Group's Bogus Claim That Gmail Users Can't Expect Privacy”

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undermythumb says:

Re: Re: There is a difference, surely ?

cant believe google gets away with this crap. you r the consumer last time i looked. what is with this google can do this or that, hey let them take over the entire telecom, cell phone, computer, smart tvs, and more. they already are half way there. and make sure u dont care too, cuz they already know u more than your own mother. let them show any stranger, even u, directions to your house, lots of pictures where u live too ……. that should make u feel safe and secure, especially when the lights go out .

Pragmatic says:

Re: There is a difference, surely ?

Ads already in the system are brought up in response to keywords that you inadvertently put into your emails. For example, if I email a friend to congratulate her on her pregnancy, I may well be served with ads for baby products that were waiting to be called up when I mentioned the word “baby.”

Pat says:

Re: There is a difference, surely ?

Fact: EVERY single email provider on the planet has software the READS EVERY EMAIL in order to detect and get rid of SPAM via content filters.

Every…single…one, and every company.

By the time email reaches the Inbox, it’s been read, probed, prodded, analyzed and thoroughly decomposed, probably by multiple pieces of software.

And it’s been that way for at least 6 years…

You don’t want “anyone” to be able to read your email… don’t send any.

out_of_the_blue says:

The only question is: does Google SNOOP OR SPY? Discuss.

First, YEAH, this is not new. It’s why I’ll never use Gmail.

And here’s Monetizing Mike, cartoonishly defending Google with a long piece as absolutely expected — if not required — even MORE than you can expect me to drop in, yet he’s previously written: “Any system that involves spying on the activities of users is going to be a non-starter. Creeping the hell out of people isn’t a way of encouraging them to buy. It’s a way of encouraging them to want nothing to do with you.”

And I ask yet again (still not expecting an answer from those who won’t think about it): So why doesn’t that apply to The Google? Does “any system” not mean Google? Or is Mike just blind where his precious is concerned?

When you think surveillance or spying or snooping, think Google!

JMT says:

Re: The only question is: does Google SNOOP OR SPY? Discuss.

Spying by definition is covert. What Google does is well-known and understood. Obviously most people don’t find what they do creepy based on the fact that Google are a bit beyond being called a “non-starter”, and those that do think they’re creepy are welcome you use somebody else’s less creepy services if they want.

It’s amusing how you call Google Mike’s “precious when it’s clearly you who has the Google obsesion, not Mike.

Mark says:

The failure to recognize that massive difference...

Mike writes: “That’s the problem with Smith v. Maryland — the failure to recognize that massive difference between me (1) consenting to let my phone company record who I make phone calls to in exchange for the ability to make calls and (2) the expectation that it’s okay for the government to collect that very same info without a warrant.”

But to follow your analogy to its logical conclusion, then surely what Google is doing would be the equivalent of your phone company listening to your phone calls and then selling information about what you’re talking about to third-party companies, that then call you up and pitch their products/services based on your phone calls? Then arguing in court that you don’t have an expectation of privacy to your phone calls because you’re using a phone company as a service provider. Presumably most people would agree that they don’t want their phone company listening to or recording their actual conversations and messages…

John Thacker (profile) says:

Re: The failure to recognize that massive difference...

The term “no expectation of privacy” is a legal term that refers to whether or not you have any rights against the US Government demanding your data from Google. Unfortunately, we don’t– the Supreme Court said in Smith v. Maryland that as soon as you hand data over to a third party, you give up all privacy rights and agree that the government can get it from that third party without you being able to do a thing about it. It’s a terrible, stupid, stupid doctrine, a horrible ruling, and should be reversed. But as long as it’s the law, and Google can’t stop the government from demanding your data (without shutting down GMail completely like Lavabit), they’re absolutely correct in warning people.

It doesn’t mean that Google is snooping your data.

JMT says:

Re: The failure to recognize that massive difference...

“…surely what Google is doing would be the equivalent of your phone company listening to your phone calls and then selling information about what you’re talking about to third-party companies, that then call you up and pitch their products/services based on your phone calls? “

Google’s ads barely register in my head. They certainly don’t ring me up when I’m trying to eat my dinner and then ask if they can call back later. So no, it’s nowhere near an equivalent because the impact on my activities is almost zero.

“Presumably most people would agree that they don’t want their phone company listening to or recording their actual conversations and messages…”

Correct, but an algorithm scanning text for keywords is quite different to a person actively listening to a phone call, both in effect and feasability.

John Thacker (profile) says:

The third party doctrine is terrible. But it’s not Google’s fault, it’s the Supreme Court’s. What “no expectation of privacy” means is that the government can come in and take the records without you getting a say in the matter. (And Google doesn’t have 4th Amendment protection to “business records” because, well, corporations have to be regulated.)

They are warning people about what the law is, according to the Supreme Court (and, indirectly the rest of the branches of the US Government). If they said otherwise, they’d be misleading people, making them think that the government couldn’t get at the data. If Google tried to fight government demands right now, they’d lose, just like any other corporation.

Anonymous Coward says:

Re: Less doctrine more fact of life

it’s simply the law making clear something that is bleeding obvious if you have an expectation of privacy, you are simply wrong, and have not been paying attention for the last 20 years!

Everyone knows (in their right mind) that emails can be retrieved, and are archived and are routinely used in courts.

You have no expectation of privacy because that is a basic fact of life. The only appears to be suckered here is Masnick !

Anonymous Coward says:

Re: Re: Less doctrine more fact of life

Circa 1210: It is bleeding obvious, the king has unlimited power to arbitrarily punish those whom he sees fit, you are simply wrong to expect him not to. It’s a basic fact of life.

Excellent logic that.

Circa 1776: It is bleeding obvious, soldiers can be quartered in your house in a time of peace, you are simply wrong to expect them not to be. It’s a basic fact of life.

I don’t see how anyone could assail your position.

Circa 1950: It is bleeding obvious, races can be offered segregated which are separate by equal, you are simply wrong to expect them not to be. It’s a basic fact of life.

I saw your reasoning is quite iron clad.

bigpicture says:

And Newspapers wonder why they are failing?

Years ago I stopped reading newspapers, or watching TV news. Why because they don’t do any real news reporting or any story supporting research. They report factually inaccurate information, (or lies) and they are the propaganda instruments of special interest groups such as governments and corporations. Is that not why the the whole Constitution aspect has come into question, and the protection of sources etc. It’s not really Journalism if you are not really reporting researched facts, but pulp fiction instead. Not really reporting THE NEWS.

Anonymous Coward says:

Re: Re:

Google?s brief said: ?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 emails are processed by the recipient?s [email provider] in the course of delivery. Indeed, ?a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.?? (Motion to dismiss, Page 19)

PaulT (profile) says:

Re: Re:

Google have competition in every one of those areas, and in every other area in which they currently do business. The vast majority of them are also free of charge.

It’s not their fault some people are too stupid to move to a competitor if they find their terms unacceptable. Hell, people can even use Google’s search engine to find those competitors if they’re too dumb to type a different URL before they start…

Mike Masnick (profile) says:

Re: blind spots

It’s interesting watching the cognitive dissonance on display here with these defenses of Google.

What cognitive dissonance?

One simple way of examining your position for self-consistency – if you replaced the company involved with one you had opposite feelings for, would your position still be the same? If not, why not?

I don’t have particularly good feelings about Google’s privacy record, personally, so if I were to find a company that I had opposite feelings it would be one that I trusted a lot more on privacy issues — and I’d feel the same way.

What these companies are doing is basic automated management of email. It’s no different than a spam filter.

Consumer Watchdog’s argument is that a spam filter is an illegal invasion of privacy. That’s insane.

Cowards Anonymous says:

Re: Re: Re: blind spots

Nor is it like how Gmail actually handles advertisements.
Here’s how it works:

Google has a database of advertisements submitted to them by advertisers with keywords they want their ads to be associated with.

You use a web browser to access your email on the web site rather than an email client like Outlook or Thunderbird, the web site has fields on the page reserved for displaying advertisements.

When you open an email on the web service, the email is retrieved and displayed to you with an advertisement from the database. An automated program (not a human) selects from the database the advertisement whose key words best match the words displayed on the page.

The advertiser pays Google based on how many times the ad is displayed or clicked on. No email content or account information is ever provided to the advertiser, only total aggregate number of views/clicks. No human reads your email in this process but you (the NSA already collected and may read it if they decide you’re relevant to a “targeted search”).

So while this may result in some odd results sometimes like an ad for the new bear exhibit at the zoo next to an email about an escaped bear mauling people, there isn’t really much intrusion going on by Google. Hotmail, Yahoo, Facebook, etc. aren’t much different in how they deliver context sensitive ads themselves.

PaulT (profile) says:

Re: Re: Re:3 blind spots

It does matter in the sense that an automated process is just going to search for keywords, etc. without context or meaning being recorded.

A human reading your email will understand and possibly remember what it’s saying even if they try not to (and possibly act on what they’ve just read), while a program will not unless specifically designed for that purpose.

Sheogorath (profile) says:

Re: Re: Re: blind spots

“Since when do ‘spam filters’ look for keywords, and then pass them on to other 3rd party companies to enable them to direct advertisements to you for profit?”
Except Google only do that in the conspiracists’ world. In the real world, they actually sell advertising ‘space’, receive adverts from their customers, then use keywords to decide which adverts to display and where. It’s rather like TV adverts in that way, in which broadcasters receive the adverts from the advertising agencies of their customers, then decide which adverts to display based on time and point in the programme. If you’re going to attack Google for searching emails for keywords to use, at least do it accurately.

Anonymous Coward says:

Re: Re: blind spots

As an expert on spam, I will concur that a spam filter is most certainly NOT an illegal invasion of privacy.

However: as a technical point, I’ll note that most spam “filters” are obsolete junk, used only by the ignorant, lazy, and the incompetent. Why do I say that? Because it is obvious on inspection (by any modestly intelligent person) that THEY DON’T WORK. Spammers didn’t simply sit on their hands, watch them developed and deployed, and do nothing: they studied them and adapted. And as is their pattern, it took them a little while to get going…but once they did, they made a great deal of progress in a very short time.

As a result of that, content-based spam filtering is dead, dead, dead. Oh yes, there are lots of people still using it, because lots of people are ignorant, lazy and incompetent. (Google still uses it. And it doesn’t take much of an experiment to demonstrate that it’s awful. Not picking on Google: the same can be said of Yahoo and Verizon, Hotmail and Comcast, AOL and Charter, etc.) Spammers have quite thoroughly beaten it, but these companies wish to pretend that it’s still working.

So the problem here isn’t that it’s an invasion of privacy — any more than normal processing of messages by an MTA (which examines the sender and recipient fields, oh the horror!) is an invasion of privacy. The problem here is that Google is making the same fundamental error as many others, using a technology that is a known failure.

PaulT (profile) says:

Re: Re: Re: blind spots

“As an expert on spam”


You clearly have a different experience to me. For example, my GMail account receives somewhere in the region of 100 emails per day but I rarely see spam in my main inbox. I occasionally go through the 30-40 messages daily that get filtered to me spam folder, and I occasionally have to tell GMail that certain messages aren’t spam, but it mostly works as intended in my experience.

What’s your alternative solution if your experience is so different?

Nic Stevens (profile) says:

Well private gmail is a joke...

Once upon a time I engaged in a brief (2-3 emails) conversation with the manager of a burger joint nearby complaining about service and noise. I have never ever in my life been employed by a food service company and my entire work experience has been in telecom, industrial control and aerospace. Weeks later this same person appeared in “Updates from your Linkedin Network”. Now the only way LinkedIn would have any idea that me and this person ever spoke would be from the emails I never shared with them. Because I have had no food service or relevant experience to tie me to a burger manager, I must assume that my emails were read by LinkedIn and that would have to have been done through GMail.

(I will admit that since this place is frequented by employees of Boeing nearby there is a slightly tenable connection to aerospace, except I hadn’t worked for Boeing since 1986)

levetus says:

Re: Well private gmail is a joke...

Probably what happened is that you or the person you were emailing allowed Linked In to access your/their contacts list, in order for them to helpfully suggest users you might want to connect with on that site.

Many sites, like Linked In, Facebook, etc. have a feature whereby you give access to your contacts in a separate account with a different provider, and they match those data with their own membership data to suggest people to be your contacts.

Even if you don’t create that suggested connection on Linked In or Facebook, they know (forever) that there is some kind of link between two email addresses, and the people who own them.

Facebook have even admitted that they create “ghost” profiles of people, and ghost networks for those people, who have never signed up for accounts, based on the fact their details appear in one, two, fifty other people’s contact lists which were provided to them.

When using gmail with default settings, any email address you respond to is automatically saved in your contacts. I expect other email services do the same. You or the burger bar manager, or both of you, probably retained the other person’s contact details on purpose or unknowingly, and then shared them with Linked In, thinking they were helping you/them out.

Anonymous Coward says:

‘Consumer Watchdog’ isn’t the only body that continuously attacks Google or parts thereof. Congress never stop doing the same thing! i admit that it’s probably because the industries funding the Senators that are doing this instruct the Senators to do it, but the condemning is still done and done continuously! Google is the whipping boy for the entertainment industries and Hollywood. they cant adapt to the digital age and keep doing whatever they can think of to stop everyone else form doing the same and making those that have adapted, revert to the ‘days of yore’!

Ninja (profile) says:

I’ve seen that yesterday and started wondering where the heck it was taken from (really, newspapers should provide clear citations and sources when it’s not a problem for their safety).

Google has its share of issues concerning privacy. Some of those issues have been solved, some are still developing but it is very unjust to ramp up all that hype concerning Google when other companies don’t go through half of their efforts to reach a balanced position where customers are reasonably protected.

And this is yet another evidence of how the mainstream news outfits are as prone to errors as bloggers and other independent or amateurish sources.

Bobby says:

Are we in high school

I stopped reading after the 100th “bogus” used. “The fake hilarious bogus claims are so bogus and fake that its hilariously fake and bogus and also its not true and false because the bogus fake claim is hilariously bogus and fake” I mean really just get to the fucking evidence jackass we all ain’t teenagers in here.

PaulT (profile) says:

Re: Are we in high school

Heh, saw this pop up in my email, so I couldn’t resist responding.

“I stopped reading after the 100th “bogus” used”

Funny. CTRL+F shows me exactly 3 uses of the word “bogus” in the article (4 if you count the headline) – the last of which is in the final paragraph. You actually typed the word more times yourself (6!) to make this “point”!

“I mean really just get to the fucking evidence jackass we all ain’t teenagers in here.”

Because when you want mature adult discourse, that’s the language and attitude you use! Amazing…

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