In a July 13, 2013 memo unearthed by the group Consumer Watchdog, Google told the U.S. District Court for Northern District of California this about their email customers:
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). In particular, the Court noted that persons communicating through a service provided by an intermediary (in the Smith case, a telephone call routed through a telephone company) must necessarily expect that the communication will be subject to the intermediary’s systems. For example, the Court explained that in using the telephone, a person “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business.”
That looks like bad news for Gmail users like me, and seems particularly sinister as we try to untangle how complicit various companies have been in the NSA surveillance dustup.
But unfortunately for all of us, this problem isn't confined to Google—the company was simply citing Supreme Court precedent in that memo. The Court's interpretation of the Fourth Amendment has swung so far away from the kind of privacy protections most Americas vaguely believe they enjoy that Google is correct, there is no "expectation of privacy."
For more on this point, watch Matt Welch interview Judge Alex Kozinski, queued up to an interesting take on privacy and the Fourth Amendment below:
"If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place," Schmidt said. "But if you really need that kind of privacy, the reality is that search engines, including Google, do retain this information for some time. And ... we're all subject, in the United States, to the Patriot Act, and it is possible that that information could be made available to the authorities."
Google says its scanning your emails to provide services you want and to sell you stuff. The government is using that same data to look for reasons to put you in jail.
Two email services that purported to provide more privacy, Lavabit and Silent Circle, recently shut down, citing federal investigations, which further suggests that the problem isn't Google alone, but the general legal climate.
Here's the whole motion: