Gmail's 'Users can't expect privacy' furor: Much ado about nothing new

Did Google just say that users can't legitimately expect privacy when using Gmail? Sort of, but not really.

By seemingly admitting that Gmail users should have "no legitimate expectation of privacy," Google's legal team has created a bit of a PR headache, with terrible timing to boot.

The juicy quote fragment above comes from a class action lawsuit in California, which alleges that Gmail violates wiretapping laws when it scans messages for targeted advertising.

No one's paying much attention to the case itself. (Google argues that if it wasn't able to scan the contents of messages, it wouldn't be able to perform vital functions such as search.) What has attracted the attention of advocacy group Consumer Watchdog, and of sites like RT and Gizmodo, is a single quote from Google's motion to dismiss:

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.'

It looks bad, but as The Next Web points out, the most damning part wasn't uttered by Google's lawyers. It actually comes from a 1979 U.S. Supreme Court case, Smith v. Maryland, in which a phone company was accused of wiretapping when it installed pen registers to track dialed numbers. In its ruling, the court noted that it "consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." That's the word of the Supreme Court in 1979; Google's just citing the case for its own arguments.

You already gave your privacy away

Not that it matters. The whole ordeal over who actually uttered the words "no legitimate expectation of privacy" isn't as important as the fact that it's true. Take a look at Google's privacy policy, and you'll see that you've already granted Google the right to sift through your stuff, and yes, the policy explicitly mentions doing so to dish out tailored ads.

Perhaps more ominously, you will see that Google will turn over users' personal data when it's necessary to "meet any applicable law, regulation, legal process or enforceable government request." Practically every major tech company includes similar clauses in their own terms of service.

That might have seemed okay back when we figured the government needed a warrant to get users' data, or was at least narrowly restricted in what it could get without one. But now, there are all sorts of scenarios in which the NSA can sift through users' personal data, even if they are inside the United States and not suspected of a crime.

Legal texts aside, we gave up our "legitimate expectation of privacy" when we let the government greatly expand its surveillance powers. In citing an old Supreme Court case, Google is just reminding us of what we should already know.

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