Wednesday, August 14, 2013

Google's Litigation Defense Highlights The Need For Legislative Solutions to Privacy Questions

According to Google, we should figure out how to put wax seals
on our email correspondence to ensure that couriers such as
Google don't read them during transit.

Some Pennsylvania residents who are not Gmail users have tried to bring a class-action lawsuit against Google for inspecting their email when sent to Gmail users. The premise of this particular suit is a little silly, but Google's recent defense points to the problem with the lack of clarity in American privacy law:
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'
Taken to the extreme, Google's defense would lead to some absurd results. It would imply that letters sent via Pony Express in the 1870s are not private because the riders could open them at any time. It would imply that those sending telegraphs in the 1890s would have no expectation that Western Union would keep its customers' telegrams private. But neither of those implications pass the smell test. We generally expect person-to-person communication to involve some level of privacy, regardless of the technical means by which we engage in that communication.

With rare exception, legislators have allowed communications privacy law to develop through the courts. But we now live in a very different era than even the 1980s. A huge number of citizens engage in electronic communication on a day-to-day basis. The government and private enterprises now have the capability of capturing, monitoring, and querying some or all of that communication. But we have very few laws on the books that set any rules of the road for how law enforcement, advertisers, retailers, and social can use this data. It's time for that to change.
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