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Google’s “no expectation” claim is the last defence of the indefensible

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By Simon Davies

Earlier this week Google formally declared that people using its email services should have “no legitimate expectation of privacy”. Predictably, the admission has sparked a sharp and hostile reaction from media commentators and rights groups.

Google filed the statement in response to a US class action lawsuit alleging that the interception and scanning functions of its GMail service violate federal and state wiretap laws (the company scans all emails to power the serving of ads to its customers).

When you sign up to a Google service, you become the company’s product and your rights are transmogrified into revenue. 

Google’s spin doctors were on the case from the outset, pushing an argument that the media had got it wrong, but the deposition speaks for itself. While it’s true that the document quotes from case law, Google’s fundamental position is poisonous to privacy.

The Google position is unsettling not just because it challenges fundamental privacy rights, but also because the company audaciously argues that it enjoys the same legal standing as law enforcement agencies.

The statement should not have come as a surprise to anyone. Google has already made its position on privacy abundantly clear in its one-sided user agreements. When you sign up to a Google service, you become the company’s product and your rights are transmogrified into revenue.

In the privacy realm, Google is amongst insalubrious company. The US Internal Revenue Service makes the same argument, as does the NSA. Both say the public should have no expectation of privacy of communications. However the difference is that those latter institutions can lay claim to protection of the public interest, whereas Google is a private interest. Unless, that is, Google is also arguing that as a partner of law enforcement and security agencies for data disclosure it should be given equivalent standing.

The “no expectation” claim is worrying at two levels. First, historically, before rights of any kind are won, the worst violators have argued that victims have no expectation of enjoying those claimed rights. Slaves had no expectation of freedom; children in care had no expectation of protection; employees had no expectation of protection against workplace surveillance; prisoners had no expectation of a right to safety or care. And historically, that’s when the full horrid story – and the corpses – start to appear. Google’s “no expectation” claim is the last defence of the indefensible.  

The trick for the likes of Google and the IRS is to anaesthetise the public by embedding the idea that rights are inconceivable

Second, there’s a quite nasty propaganda strategy at play here. Tell consumers they have no rights. Tell them often enough – and with repeated conviction – and they’ll learn to accept it. The trick for the likes of Google and the IRS is to anaesthetise the public by embedding the idea that rights are inconceivable, and then investing a lot of energy in explaining “why” they invade our privacy rather than “how” they plan to protect privacy. Welcome to the New Transparency.

In one of the more bizarre arguments in recent legal history Google now claims “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 [electronic communications service] provider in the course of delivery.”

This argument overlooks four realities. First, the use of an office assistant is within the discretion and under the control of the recipient. Second, the assistant is a defined value added service to the recipient, which Google is not. Third, the interception of mail is subject to strict and defined provisions of law. Finally – and most germane – if the Google position were taken to its logical conclusion there would be no expectation of privacy by the mail service provider (the Post Office).

The advertising giant bases its legal position on a 1979 case, Smith v. Maryland, which found that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

In that case, a telephone company, at the request of law enforcement, installed a pen register to record the numbers dialed from telephones. The Supreme Court found that “the installation and use of the pen register was not a ‘search’ within the meaning of the Fourth Amendment, and hence no warrant was required.”

The idea that Google users should have no expectation of privacy is the inverse position that applies in Europe,

It doesn’t take much analysis to see that the Google position is untenable. The 1979 case was based on an entirely different context, but even if its definitions applied to private advertising interests, Google is unlikely to get around legal protections in states such as California.

This matter was argued exhaustively nine years ago by a number of US and international privacy rights groups. They took the position then that Californian law protected such search functions only in the case of public utilities – which Google most certainly is not.

However much of this reasoning is irrelevant to the rest of the world, from which Google extracts most of its revenue. The idea that Google users should have no expectation of privacy is the inverse position that applies in Europe, where the default legal condition is an expectation of privacy protection.

Google is already in deep trouble in Europe. Privacy regulators have repeatedly declared the company illegal in some jurisdictions while impending data protection reforms will doubtless imperil some of the company’s data processes.

In the wake of heightened public concern over communications interception Google’s position is likely to be seen as an entirely inappropriate defence of a fundamentally dangerous business model that must be brought to heel.