Google: Gmail users ‘have no legitimate expectation of privacy’

As tensions worsen among privacy-focused email users amid the escalating scandal surrounding government surveillance, a brief filed by attorneys for Google has surfaced showing that Gmail users should never expect their communications to be kept secret.

Consumer Watchdog has unearthed a July 13, 2013 motion filed by Google’s attorneys with regards to ongoing litigation challenging how the Silicon Valley giant operates its highly popular free email service.

The motion, penned in hopes of having the United States District Court for the Northern District of California dismiss a class action complaint against the company, says Gmail users should assume that any electronic correspondence that's passed through Google’s servers can be accessed and used for an array of options, such as selling ads to customers.

"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,” the motion reads in part. “Indeed, 'a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’" 

Elsewhere, Google’s legal counsel says the plaintiffs are attempting “to criminalize ordinary business practices” that the company has implemented for nearly a decade, specifically the automated scanning of emails.

According to Google, federal wiretap laws provide third-party email providers with liability from litigation if their practices are done “in their ordinary course of business.” An Electronic Communication Service (ECS) such as Gmail must scan emails sent to and from their systems, says Google, as part of providing the services they offer.

“While plaintiffs go to great lengths to portray Google in a sinister light, the complaint actually confirms that the automated processes at issue are Google’s ordinary business practices implemented as part of providing the free Gmail service to the public. This is fatal to plaintiffs’ claims,” the attorneys write.

Plaintiffs claim that an illegal interception is committed each time an email sent to or from a Gmail account is scanned, but the company counters that claim by saying the automated scanning is not only outlined in the Terms of Service agreement, but necessary for the product to function in the way it does. 

Gmail customers, the company claims, “are contractually bound to Google’s terms. Indeed, they devote much of the Complaint to attacking the disclosures in the TOS and Privacy Policy in an effort to avoid this express contractual consent.”

“In short, there is no illegal ‘interception’ here because Plaintiffs’ own allegations confirm that the alleged practices at issue are part of Google’s ordinary course of business,” attorneys write.

“In practice, plaintiffs’ theory would prevent ECS providers from providing a host of normal services that Congress could not possibly have intended to criminalize as an illegal interception,’” they continue. “For example, an ECS provider could not allow users to sort their emails using automated filters because any such system would require scanning the contents of the emails being delivered to the user, thus running afoul of plaintiffs’ theory. Nor could an ECS provider provide even basic features like allowing users to search their own emails for particular key terms because doing so would, again, involve the scanning of email content”

Google is now asking for the court to reject the plaintiffs’ claims because their interpretation of what constitutes an illegal interception would make it “virtually impossible” for any email company to provide normal services. By saying customers lack no right to privacy, however, Consumer Watchdog is up in arms.

"Google has finally admitted they don't respect privacy," John M. Simpson, Consumer Watchdog's Privacy Project director, said in a statement "People should take them at their word; if you care about your email correspondents' privacy don't use Gmail."

"Google's brief uses a wrong-headed analogy; sending an email is like giving a letter to the Post Office," added Simpson. "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?"

News of Google’s motion to dismiss the complaint comes just days after two pay-for-use providers of highly encrypted and seemingly secure email services announced they’d be calling it quits. Vaguely citing a federal investigation, Texas-based Lavabit said on Thursday last week that they’re shutting down its email service, reportedly used by National Security Agency leaker Edward Snowden. Hours later, competitor Silent Circle said they’d be doing the same.

“I feel like there is a rising tide of surveillance out there, and we need to push back against it,” Silent Circle COO Vic Hyder told RT this week.