[conspire] (forw) Re: GOOGLE: If You Use Gmail, You Have 'No Legitimate Expectation Of Privacy'

[Tony Godshall]

The whole e-mail left on servers you don't own
being considered abandoned and fair game is quite an issue

It's no surprise to many of us but I imagine the
publicity is valuable if it moves public policy/

T




On Fri, Aug 16, 2013 at 7:20 AM, Rick Moen <rick at linuxmafia.com> wrote:

> ----- Forwarded message from Rick Moen <rick at linuxmafia.com> -----
>
> Date: Fri, 16 Aug 2013 07:15:51 -0700
> From: Rick Moen <rick at linuxmafia.com>
> To: skeptic at lists.johnshopkins.edu
> Subject: Re: GOOGLE: If You Use Gmail,
>         You Have 'No Legitimate Expectation Of Privacy'
> Organization: If you lived here, you'd be $HOME already.
>
> Quoting Scott Peterson (scottp4 at mindspring.com):
>
> > If you happen to be one of the 400 million people who use Google's
> > Gmail service for sending and receiving emails, you shouldn't have
> > any expectation of privacy, according to a court briefing obtained
> > by the Consumer Watchdog website. In a motion filed last month by
> > Google to have a class action complaint dismissed, Google's lawyers
> > reference a 1979 ruling, holding that people who turn over
> > information to third parties shouldn't expect that information to
> > remain private. From the filing (emphasis added): 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 provider in the course of delivery.
> > Indeed, "a person has no legitimate expectation of privacy in
> > information he voluntarily turns over to third parties." Smith v.
> > Maryland, 442 U.S. 735, 743-44 (1979).
>
> This needs to be seen in its proper context of a tactical argument used
> by corporate lawyers to attempt to get a class-action lawsuit dismissed.
> The motion to dismiss in question can be read here:
> http://www.scribd.com/doc/160134104/Google-Motion-to-Dismiss-061313
> My point is that, yes, this is a position being taken tactically by some
> corporate legal mercenaries (at Cooley LLP of San Francisco), but
> such legal mercenaries are not developing or making corporate policy.
>
> So, no, the court filing doesn't mean GMail users shouldn't have any
> expectation of privacy.  On the other hand, there are a number of other
> things entirely that _do_ point to that outcome, starting with the
> fundamental relationship between all GMail users and Google, Inc.
>
> As is proverbial at this point, users of GMail and other 'free' Web 2.0
> services are not the customers of the companies providing them -- and in
> fact are the product being sold to the purchasers of data-mined
> information who are the real customers.  Just a few minutes of pondering
> the economics of such services reveals some vital truths:  Providing the
> service costs significant money, you aren't providing any of that money,
> therefore the service does not exist for your benefit and the company is
> in no way looking out for your interests.
>
> Ordinarily, you as the customer are protected by, if nothing else, the
> covenants of good faith and fair dealing that require businesses to give
> the customer what he/she paid for and not work against the customer's
> interests.  Non-customer GMail users are, by contrast, fair game.
>
> Then, too, the AJAX-type Web 2.0 technology underlying GMail and similar
> services' 'dynamic' user interfaces is perfectly suited for the very
> most intrusive varieties of data-mining, because it permits the provider
> to, if it wishes, follow, record, and analyse every keystroke, every
> pointer motion, and every sequence of link-following both within the
> service and (with the help of ancillary tracking technologies maintained
> using Javascript-driven triggers) as you subsequently move on to other
> services elsewhere.
>
> (It should be noted that GMail supports a non-AJAX 'classic' Web
> interface that is not amenable to real-time user tracking, and an
> IMAP/SMTP interface that is even better for users wishing to restore a
> bit of control and yield less information.  Users with at least a
> minimal interest in privacy should do that much, for starters.)
>
> And it also should be pointed out that Google, Inc. is now _the_
> predominant player, in all the world, in data-mining of the public,
> ensuring that its very breadth of presence helps them reach out and
> register what you are doing, what you are buying, whom you are social
> with, etc.  Even Facebook is a piker compared to the corporation
> (Google) that bought infamous spying-on-users firm Doubleclick for US
> $3.1B.
>
>
> And, by the way, the legal mercenaries' citation of Smith v. Maryland
> was to a certain extent humbug -- but lawyers are paid to make arguments
> citing precedent that may or may not be accepted by judges.  Their
> theory is, if you didn't try, you'll never know whether the judge might
> have said yes.
>
> Smith v. Maryland concerned a 'pen register' (a simple device that
> records all telephone numbers called from a single origin number, with a
> time/date stamp, but records absolutely nothing else about those calls,
> and in particular nothing about the call contents) in a telco central
> office -- without court warrant -- as part of police investigation of a
> man named Michael Lee Smith, whom they suspected of robbery and wanted
> to see whom he dialed from his home telephone.  Why?  Because robbery
> victim Patricia McDonough had given police a description of the robber,
> and thereafter started receiving threatening and obscene anonymous
> telephone calls.  The calls continued following installation of the pen
> register, which duly was found to show calls to McDonough, which gives
> police probable cause to search Smith's house, yielding more evidence,
> and Smith was indicted for robbery.  At trial, he attempted to suppress
> the pen register data (and thus the house search as fruits of the
> poisonous tree) as a Fourth Amendment illegal search.  He lost, and
> appealed.
>
> THe USSC agreed.  The telco central office was not Smith's property,
> hence was not his Constitutionally protected area under the Fourth
> Amendment.  Also, the court accepted the State of Maryland's contention
> that Smith could not have expected to keep the numbers he dialed
> private, because he needed to have those numbers register at the telco
> in order to connect the call at all, and for accurate billing, to check
> for defective dial, and a variety of other legitimate business purposes.
>
> It's also important to note that the telco was not obliged to install
> the pen register, and so Smith assumed the risk that the telco might
> decide to give information to state authorities.
>
> So, the USSC concluded that there was no Fourth Amendment violation in
> the telco's voluntary operation of a pen register, and yielding its
> record of telephone numbers to police.  This does not preclude the
> possibility of statutory privacy protections -- such as, oh, say, those
> of the Electronic Communiications Privacy Act of 1986 (too late to be
> cited by Smith).
>
>
> Google's lawyers' comparison of the current class-action suit to the
> Smith case is humbug in that the text data they are harvesting out of
> sent and received e-mail, not to mention the real-time tracking data
> they are compiling on their users' Web usage, is NOT necessary to the
> transport of that e-mail (unlike telephone numbers for the telco).
>
> In any event, cases like the Smith one and the current class-action case
> that cites it -- and the attitudes they reveal -- are part of the reason
> I choose to outsource as little of my Internet operations as possible,
> and don't trust J. Random Web Site's Javascript programs.
>
>
> ----- End forwarded message -----
>
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-- 
--
Best Regards.
This is unedited.
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