from the no-expectation-of-accuracy dept
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:
- CNET: Google filing says Gmail users have no expectation of privacy
- Time: Google Says Gmail Users Have ‘No Legitimate Expectation of Privacy’
- The Guardian: Google: Gmail users shouldn't expect email privacy
- Gizmodo: Google: Non-Gmail Users Have No Legitimate Expectation of Privacy
- Huffington Post: Google: Email Users Can't Legitimately Expect Privacy When Emailing Someone On Gmail
- Business Insider: GOOGLE: If You Send To Gmail, You Have 'No Legitimate Expectation Of Privacy'
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.