"No Legitimate Expectation of Privacy," Says Google, Quoting the Supreme Court



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:


Business Insider digs up Google Executive Chairman Eric Schmidt, sounding like a bit of jerk on CNBC in 2009 on a related point: 

"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:

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  1. This whole concept is such nonsense. I don’t expect people or companies to broadcast information I give them as a general matter. In some instances, it’s obvious that the information isn’t going to be private, like when I shout my love to my wife in a crowd. But there are a large number of situations where that information should remain confidential and I expect it to do so.

    1. I would say given Smith was decided in 1979, you have been thoroughly informed that your expectation is unreasonable.

      Now, should that be the case? No. If there were a change in the law in front of me as a legislator, I would vote for it. But I agree that the law as interpreted is correct.

      1. There is the problem, once the court adopted the doctrine of “expectation of privacy”, we effectively had no privacy. Whatever privacy you have is always subject to change once they tell you it is no longer private.

        1. Of course, they’re doing more than just collecting things we say. They’re also looking for patterns of behavior and drawing inferences from that, which is a lot more like stalking.

          1. The Secret Government wishes it could quit us.

            But it won’t.

            1. It’s just showing how much it cares.

              1. because it has so much love to give.

          2. That’s why stalking is now against the law – government wanted a monopoly on that.

      2. That case is far more narrow that the government is trying to make it seem. Besides, there are whole swaths of obvious exceptions to that.

      3. I know you’re just repeating the terms being used, but we must really make a distinction among reasonable, legitimate, and legal. The law is neither reasonable nor legitimate.

      4. It’s a fairly stupid doctrine. Imagine if court decided whether or not the government could murder its opponents based on whether or not they had a reasonable expectation of being murdered. Once the government started murdering its opponents, it would be reasonable to expect that opposing the government would get you murdered, thus the courts would have to conclude that it was legal for the government to murder its opponents.

    2. FUCK Smith!

      What the fuck does the 4th Amendment have to do with privacy? It’s about when the government can seize your shit.

      My data belongs to my provider. If my provider doesn’t wish to provide that data to the government, fuck them, come back with a warrant. That they can access the same data by other means has absolutely NO bearing on the applicability of the 4th Amendment. You can find it elsewhere? Fine, bitch, go find it elsewhere.

    3. “No legitimate expectation of privacy”. Okay, so if the NSA sends a bunch of requests for spying to Google, and Google inadvertently publishes all those requests or leaves them unencrypted somewhere, the NSA can’t complain if the information gets out. And if the NSA has nothing to hide, why would they be concerned anyway?

      1. wouldn’t this exact thing apply to Snowden and what he has posted. The Government can’t have a reasonable expectation of privacy ^^

      2. wouldn’t this exact thing apply to Snowden and what he has posted. The Government can’t have a reasonable expectation of privacy ^^

  2. 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.”

    Sure it is possible, with a fucking warrant, you half wit. It amazes me how stupid and arrogant these people are. They may be able to own the government enough to get away with this shit in the US. But they won’t get away with it in the entire world. The rest of the world is just going to stop using American tech companies. Why would you? They openly admit they are nothing but front operations for the NSA.

  3. So with places like lavabit and silent mail shutting down, what are the real alternatives to gmail and the like? Anyone have a list of offshore email providers that actually care about privacy?

    1. It’s not hard to setup your own email server.

      1. 1) Your own e-mail server doesn’t resolve the problem since it’s still using unecrypted SMTP protocols to communicate with all the other e-mail servers

        2) And that’s assuming your ISP isn’t blocking the SMTP ports to stop you from setting up your own e-mail server

        3) And even if your ISP isn’t, all the other e-mail servers are probably blacklisting all the enduser ports to prevent spambot networks

        1. Point 1 is true of literally any communication service.

          Point 2 and 3 are solvable with money.

          1. I have in the past operated small email servers for my personal use. I cannot do so with my current ISP. I would have to lease a server somewhere and the cost is probably more than a paid account with an existing provider. Plus running your own sometimes causes problems as some banks and online retailers will not accept email addresses from non-“established” email services.

          2. There are communication protocols that allowe for end-to-end security. SMTP is not one of them. My point is to that some extent the e-mail problem is the result of a fundamental design flaw in the e-mail specification.

            1. Well, fundamental design decision. The flaw was in assuming that it would used like physical mail and therefore the contents would be secured by law against reading without a warrant.

              1. Problem is that e-mail is less like physical mail than it is like a physical postcard. Anyone around it any point between sender and recipient can read the entire contents without any sort of tampering.

                1. I don’t disagree that they made the wrong decision, but I think they were aware of the limitations when the decision was made. So I think we are saying the same thing, only I’m hesitant to call it a design flaw any more than a backdoor is a security flaw. They are problems, but they were put there intentionally and work exactly as intended. Also, I’ve been getting boned by bad client IT all week, so I may just be looking for a fight.

    2. What you want is something like the secure email service built for HIPAA compliance. Basically, no confidential information goes through SMTP. All you get is a link to a file on a secure server. The original uploader encrypts a file, puts it on a server and sends a link to the end user. Who downloads the encrypted data and decrypts locally. The file service has no contact with the unencrypted data or way to decrypt it. That way they can turn over all of their data and it is still encrypted.

      1. The problem is it doesn’t interface well with existing email systems. And trying to get most of your non-techie friends/family/business contacts to step away from SMTP based systems is extremely difficult. One, they don’t understand the tech problems. Two, they may not care about privacy. Three, they don’t want to be bothered to learn a new system.

        1. So what? I already told them I’ll never use facebook, not hard to tell them I won’t use SMTP email.

    3. The real alternative is a private courier service, one that avoids airlines, with messages written in code in disappearing ink.

  4. Don’t be complicit in evil.

    1. Sounds like Google has substituted “illegal” for “evil” in their famous motto.

    2. Am I the only one who knew as soon as I heard they put such a sign in their offices that Google was in fact complete evil fuckers? When someone puts up a sign that says “don’t be evil” the last thing they are trying to do is not be evil If they were, they wouldn’t have to hang the sign to remind themselves. They hang the sign as a way of rationalizing all of the evil things they plan to do.

      1. I think they meant “don’t appear to be evil”.

  5. We read Smith v. Maryland in Criminal Law & Procedure. The dissent by Justice Marshall and Brennan was fantastic and still relevant today. In a recent discussion here I argued that the more ‘liberal’ Democratic appointees tend to preferable in my opinion, and I was thinking of Justices like Marshall and Brennan in criminal matters.

    – But even assuming, as I do not, that individuals “typically know” that a phone company monitors calls for internal reasons, it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.…..2&page=735

    1. More from the dissent

      -The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government’s previous reliance on warrantless telephonic surveillance to trace reporters’ sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

      1. Needless to say, I disagree entirely. I fail to see how you can have a reasonable expectation that someone else is going to keep information you gave to them private. Even kids learn early not to use notes or disguise their handwriting in case someone discloses.

        1. So your bank should give out your account details and when your money is all gone you should have known not to trust the bank?

          1. That’s between you and the bank in contract. I know it’s probably not good business for a bank to do so, so why would they?

            1. Just because they could conceivably not live up to their obligation, doesn’t mean you are not right to expect them to. So you still have an expectation of privacy there. And that of course is why you would have a cause of action against them.

              1. Just because they could conceivably not live up to their obligation, doesn’t mean you are not right to expect them to. So you still have an expectation of privacy there. And that of course is why you would have a cause of action against them.

                If we want to write that into the implicit terms of a banking arrangement and the parties can contract around it, that’s fine by me.

                I *think* banking may be the one place where you can approximate a relationship like an attorney or a medical practice, and I would support strengthening bank secrecy laws. That said, once you had your info over, that information is out of your control.

                1. once you had your info over, that information is out of your control.


                  If I have a secret, and I tell it to Bob AND I simultaneously post it on the internet, you can go find it on the internet and use it against me. But if the cops go to Bob, Bob isn’t required to to tell them shit unless he chooses to or you get a warrant.

                  The fact that it’s already on the internet has no bearing on the situation whatsoever.

                2. I *think* banking may be the one place where you can approximate a relationship like an attorney or a medical practice,

                  So you want a caste system codified into law.

                3. When the NSA comes knockin’, why would you expect your lawyer or doctor to abide by your inconvenient expectations of privacy? They both practice their chosen professions entirely at the pleasure of the government.

              2. -Just because they could conceivably not live up to their obligation, doesn’t mean you are not right to expect them to.

                Again, remarkably well said.

            2. It’s not good business for an email provider to not protect your email either.

              1. Floridian, you’re changing the argument.

                I think it’s a bad business idea for Google to not protect your e-mail. I don’t think you have a reasonable expectation of privacy in that e-mail. As a matter of fact, Gmail’s entire premise is that your e-mails are “read” all the time!

                1. How am I changing the argument? You said you don’t have an expectation of privacy from a third party. I said a bank is a third party you expect to keep your information private. You said it is bad business. If it is bad business for one third party it is bad business for all third parties. Just because people can’t live in a vacuum does not make them suckers for interacting with other parties and expecting confidentiality.

                  1. The bank analogy is perfect.

                    If a bank can be “like a lawyer or doctor” than so can an email company or a phone company.

                    1. Thank you. Blind squirrel. Nuts and what not.

                    2. I find it strongly ironic that people who are so anti Intellectual Property are then turning around and claiming information I share with third parties creates an obligation on *them*.

                    3. Who is anti intellectual property?

                    4. I find it strongly ironic that people who are so anti Intellectual Property are then turning around and claiming information I share with third parties creates an obligation on *them*.

                      The obligation isnt on the 3rd party, but on the government. They need a warrant.

                      Im fine* with google selling my info to other private parties.

                      *within the bounds of our contract/service agreement/etc.

                    5. The government doesn’t need a warrant if it asks google and Google hands it over.

                    6. The government doesn’t need a warrant if it asks google and Google hands it over.

                      That is my fucking point, Im saying it STILL needs a warrant. That is the expectation of privacy.

                      To make an off-the-wall analogy that you wont get, Im fine with the restaurant down the street racially discriminating but the state cant.

                      Why? Because they are held to too different standards.

                      A 4th PRIVATE party can accept info that google gives them. The state cant.

                    7. That is my fucking point, Im saying it STILL needs a warrant. That is the expectation of privacy.

                      So the breach of privacy is in the asking?

                    8. The breach of privacy is in the attempt to circumvent their legal obligation to obey the law.

                      For the same reason a cop can’t legally hold a gun to your head and “ask” you to provide evidence, because, after all, the judge would probably have given him a warrant anyway.

                    9. The obligation isn’t on the 3rd party, but on the government. They need a warrant.


                    10. The bank analogy is perfect.

                      If a bank can be “like a lawyer or doctor” than so can an email company or a phone company.

                      Well, a bank isn’t a doctor or a lawyer, so your analogy fails.

                      Is there any industry where this “exception” would NOT apply?

                    11. Is there any industry where this “exception” would NOT apply?


                      I never claimed it to be an exception.

                    12. No.

                      I never claimed it to be an exception.

                      So if your garbage man broadcast the contents of your garbage, what would, in robctopia, be your recourse? A civil suit for breach of privacy?

                    13. A civil suit for breach of privacy?

                      See above.

                      The breach would be by the state.

                    14. So no banking for you then? I think people expect banks to protect their information. If the Feds want to seize my assets I believe they need a warrant. Want to search my email? Fine get a warrant.

                    15. Want to search my email? Fine get a warrant.

                      If you don’t want a third-party to disclose your e-mail, don’t disclose your e-mails to third parties.

                    16. I would use an email provider that does not expose my emails but the fed shuts them down. Market failure? BTW do you think mail men have the right to open your letters and look through them? Just because you didn’t walk it to the receipent you have no expectation of privacy right?

                    17. It’s entirely different if you have a contract with the other party prohibiting them from releasing your e-mails. Part of the problem is if the government passes laws or regulations prohibiting e-mail providers from executing contracts with their customers requiring them to keep their data private. The e-mail providers always have a little stipulation in there saying they’ll protect your privacy unless the law requires them to release your information. That’s how they get you. The fact that the laws requiring release really are intended to sidestep the Fourth Amendment is what should make all of this illegal.

                      Imagine if you leased a storage facility and the government had free reign to come in and search it any time because you had entrusted the contents to a “third party.”

                    18. How do you think people functioned prior to the invention of electronic delivery via email? Do you envision James Madison and Thomas Jefferson hand-delivering individually scribed copies of their correspondence to each recipient?

                    19. Well, a bank isn’t a doctor or a lawyer, so your analogy fails.

                      And why do only lawyers, doctors, and priests get to breathe that rarified air of confidentiality?

                  2. Whether something is bad business is irrelevant to whether you have a reasonable expectation of privacy.

                2. So what you’re saying amounts to a server in a restaurant showing my check to everyone in the building. After all, I gave information for the kitchen to the server who is understood to be acting as a courier. I expect that the server will read the information as part of his/her efforts to transmit it to the kitchen staff; I do not expect that the server will read it aloud to everyone else in the restaurant.

                  Just like the dissent says, just because I don’t expect absolute privacy doesn’t mean I can’t expect any at all.

            3. So because your bank knows your password the government should be able to know your password?


              Get a fucking warrant.

        2. I disagree entirely. I fail to see how you can have a reasonable expectation that someone else is going to keep information you gave to them private.

          You want to rethink that? If that were true, there would be no such thing as attorney client or doctor patient privacy. If privacy didn’t ever extend to third parties, we would have no privacy beyond the thoughts in our head.

          1. Those are social exceptions we carve out to promote social interests. Those exceptions are not grounded in logic.

            1. Those exceptions are not grounded in logic.

              That is Tulpa level stupid. There is no logic to attorney client privilege? Being able to speak with your attorney without worrying that he is going to inform on you to the government isn’t necessary for a fair trial? Again, you want to rethink that? There is no logic to saying that people should be able to expect that their medical conditions will not be public knowledge? Making it public wouldn’t deter people from seeing a doctor?

              Come on.

              1. When I said “logic” I meant “logic”. “Wanting people to speak with a doctor” and “wanting people to speak freely with their lawyers” are political, social goals and we carved out exceptions to the logic in furtherance of those goals. As an inverse, we believe in free speech except when it comes to things like rape shield laws; there, we turned our traditional logic on its head to protect rape victims.

                I could craft a whole host of “privileges” on the same reasoning, right? What about your logic does not extend to family members and friends? To your banker? To your garbage man or mailman?

                1. When I said “logic” I meant “logic”.

                  That social and political goals form the premises for the arguments does not mean the arguments aren’t grounded in logic.

                2. Hey Kock

                  To borrow someone’s example above…

                  Do you think the owner of a storage facility must let the cops search through your belongings without a warrant?

            2. There are a whole lot of those exceptions. That’s the entire basis for the concept of “expectation of privacy.”

              Not all of our contractual relationships involve written agreements. What’s insane about this is that the government certainly expects companies to keep huge swaths of personal and not-all-that-personal information confidential as far as any party other than government is concerned.

              1. If they’re *exceptions*, then they cannot be aggregated to become the *rule*. The rule is you cannot claim a reasonable expectation of privacy in information you voluntarily disclose to third parties. We have exceptions to that rule (attorney-client, doctors, spousal), etc. Those expectations do not swallow the rule, however.

                1. Again, that’s total and complete bullshit. The case in question didn’t hold that all information shared with others is outside of the Fourth Amendment or any other constitutional protection. It’s a whole lot narrower than that, dealing only with so-called “pen register” information.

                  Taking dicta to be the whole law is silly. The courts have upheld an expectation of privacy in nonpublic communications many times.

                  Not to mention, didn’t the ECPA expressly require court orders for pen register data?

                2. reasonable expectation of privacy

                  Reasonable to whom?

                  The whole meme is bullshit invented by the judiciary.

                  1. The whole meme is bullshit invented by the judiciary.

                    For the express purpose of giving the government power that it prohibited from having.

                    Shameless judicial activism.

            3. Those exceptions are not grounded in logic.

              So, in a legal system where you cannot be compelled to testify against yourself, but others can be compelled to testify against you, you see absolutely no reason why the communication between you and your legal counsel should be privileged and off-limits from the court’s subpoena power?

          2. -If privacy didn’t ever extend to third parties, we would have no privacy beyond the thoughts in our head.

            Well said.

          3. If that were true, there would be no such thing as attorney client or doctor patient privacy.

            You can kiss that latter one goodbye. How can the government force you to be healthy if it can’t access all your medical information?

            1. And how can the government take reasonable precautions for public safety and ensure that you are getting competent legal counsel if it can’t spy on your attorney-client communications?

        3. I think when I agree to tell you something I don’t consent to you telling it to anyone else. Certainly you might do that, but that’s not what I am consenting to.

          This is heightened when I am transacting business of a more sensitive and personal nature. I don’t expect the garbage company to write down what is in my garbage and give that information to a third party. I don’t expect the video store to give a list of the video’s I rent to a company like Amazon.

          That just seems like the societal expectation of today to me.

          1. That isn’t the point. Are you saying *your* expectation of privacy should restrain what *someone else* is allowed to do?

            “sensitive and personal nature” is just a fuzzy, made-up concept that has no business in law. You put your garbage on the street, dude.

            1. Wouldn’t you find it remarkably odd and offensive to find someone going through your garbage can? I think that show what societal expectations are on this issue.

              1. Just because I would find something “odd” doesn’t mean I have a reasonable expectation of privacy in doing that thing. for example: I think it would be remarkably odd and offensive for someone (like paparazzi) to follow me down the street and take pictures of me walking and window shopping. But guess what? I’m in public and my expectation is not reasonable.

                So too here: you put your garbage out there on the street, with the clear intent to abandon it. You can’t restrain people from going through it.

                1. So too here: you put your garbage out there on the street, with the clear intent to abandon it. You can’t restrain people from going through it.

                  You know that you can be arrested for going through someone else’s dumpster?

                  I know two people who have been fired for “stealing” from their employer’s trash.

                  1. You know that you can be arrested for going through someone else’s dumpster?

                    No, I don’t know that.

                    I know two people who have been fired for “stealing” from their employer’s trash.

                    Well, the employers’ misapprehension isn’t evidence, first of all. Second, so what? At-will employment means “at-will”.

                    1. In the case of employees being fired for stealing from their employer’s trash, I can see a valid point. It discourages employees from throwing away things that really aren’t trash, and then taking them home or selling them.

                2. I think most people would find it odd because they would expect it to be private. ‘What are you doing going through my garbage’ would be most people’s response, not simply ‘what a weirdo you are for engaging in such activity!’

                3. My garbage can isnt in public. It sits on private property until the garbage men dump it into their truck, which is also private property.

                  1. My garbage can isnt in public. It sits on private property until the garbage men dump it into their truck, which is also private property.

                    Then I guess you have a great case for trespass…and nothing else.

                    1. Then I guess you have a great case for trespass…and nothing else.

                      Yes. And maybe theft.

                      Trespass is enough to require the G-men to get a warrant before rifling thru my trash/email.

                    2. If I were a government agent, the second the trash guy picked up the bag I’d ask him if I could have it. And I don’t consider it a violation of YOUR privacy if the government asks for something that is in SOMEONE ELSE’S hands.

                4. But if you lock your possessions in a storage facility owned by a third party, you have a legitimate expectation that no one else will have access to them, right?

                5. You can’t restrain people from going through it.


                  My trash goes into a rented trashcan and sits at the end of my driveway (MY PROPERTY). I entrust my trash to the trash collection company of my choosing (who I contract with to keep my trash private). I expect my trash to be secure in the back of their trash truck until it’s placed in their private landfill. I expect that if the government wants to search their landfill that the company insists they get a warrant to do so, describing the place to be searched, and the persons or things to be seized.

              2. Who besides a cop would go through someone’s garbage?

                1. Scroungers. I had people haul off some of mine the other day for the scrap.

                  1. I have read stories about hipsters that regularly visit garbage bins of restaurants to get thrown out food to eat.

                    1. I have read stories about hipsters that regularly visit garbage bins of restaurants to get thrown out food to eat.

                      I have read stories about people being arrested for stealing from garbage bins.

                    2. Well, dumpsters are usually on private property and are privately owned. So if the owner doesn’t want people going through it, it is trespassing.

                  2. Scroungers. I had people haul off some of mine the other day for the scrap.

                    That’s actually a crime in many places.

                    1. Cite one.

                      Even so, the point still stands: you are at a minimum handing over your “information” to a garbage collector. Are we going to have garbage collector-client privilege now?

                    2. Cite one.

                      When I was living in Portland Maine the city passed an ordinance making it illegal to go through recycling containers. The problem was that homeless people were collecting returnables and it was unsightly. So they made it a crime. Same reason why they made it a crime to bring more than twenty dollars worth of returnables to the redemption center. That’s how liberals show that they care for the poor.

                    3. Wow. That’s stupid. I think that one of the best effects of bottle deposits is getting bums to clean up trash. When I was at college, there was a big hill where people would hang out on nice days and drink lots of beer. In the later afternoon, a few dirty old dudes woudl come and collect all the empties. Everyone wins.

                2. Who besides a cop would go through someone’s garbage?

                  You would be surprised. I have seen people going through our garbage picking stuff out. One mans trash/treasure.

                3. Who besides a cop would go through someone’s garbage?

                  It used to be a thing in commercial litigation to send someone to go collect the other side’s trash, scatter it across the floor of a rented warehouse, and go hunting for evidence. Great fun for your junior associates and paralegals. I think judicial sanctioning put a stop to it, but I wouldn’t be surprised if there were actual laws against it now.

                  1. You don’t need a warrant to search someone’s trash. it’s trash.

          2. Amazon is a video store.

    2. The problem is that these are not your father’s liberals on the Court today. They often are worse than the conservatives who were on the court in the 1970s. Scalia and Alito have probably the best record on these issues with the Magic Latina coming in third.

      1. Are you joking?

        1. On a recent thread I broke down the Fourth Amendment cases this term.

          In all the non-9-0 cases, Breyer and Thomas were terrible.

          Alito was pretty good.

          Kagan, Sotomayer and Ginsburg were perfect*.

          *defined as deciding against the government

          1. Sotomayer has been better than I thought she would be. And Kagan is horrible on administrative power cases.

            1. I can’t think of a criminal law case last term that Sotomayer, Kagan and Ginsburg didn’t agree on (sadly usually in dissenting).

              1. More than 1 term exists in the history of the Supreme Court.

        2. Not at all. Do you read these cases? Suiter and Keagan are horrible. Both Alito and Scalia have written very good opinions on things like the right to confrontation and to a jury trial.

          The fact that you can’t even conceive of this tells me that you haven’t actually read much of the recent case law and just know the cartoons the various teams feed you.

          1. Alito and Scalia are quite good on the right to confrontation, yes, but I was speaking of 4th Amendment cases.

            Issues of searches and seizures, followed by incrimination, are by far more important to most criminal cases than confrontation issues.

            Thomas is just awful on criminal matters. He wrote a lone dissent this term arguing that blood tests of DUI suspects should be allowed without a warrant because every second of time that passes destroys some of the drug in the suspects system. He’s quite terrible on these issues.

            1. This is not to say that different justices fare better or worse in different areas from a libertarian perspective.

              If I were facing a charge involving an issue of statutory interpretation regarding a firearm charge, for example, I would want Thomas on my appellate court. But for most matters of criminal law I would not.

  6. The logic seems to be something like: We could get it with a warrant, so you really can’t expect any privacy, so we don’t need a warrant because you have no expectation of privacy.

    1. The way I’m reading this is that you can only have an expectation of privacy by hand delivering a hand-written, encrypted note, wait while the note is de-coded and read, destroy the note immediately afterwards and never use that cipher ever again.

      The rest of the rationalizations are so much sea lawyer bullshit.

  7. It really is time for everyone to start talking and emailing like a terrorist.

    1. We already do in many ways. All they can do is collect. They have no idea what to do with the information or how to determine who is a threat based on it. The whole thing is a farce. Time and time again, they fail to stop terrorists who did as much as set up a facebook account explaining their plans.

      1. The real goal is compliance. If you make trouble they have your history indexed. Even if you commit no crime an email can be taken out of context to embarrass you or a kinky search history made public.

        1. The real goal is for them to be able to say they are doing something. Long term, these things will be abused and used to terrorize opponents. But that is down the road. Right now they are just small sad people who don’t know how to do what they claim they can do and are doing everything they can to make it appear otherwise.

        2. The real goal is for the government to protect its tax revenue. The secondary goal is to appear to be doing something about the threat of terrorism the government’s policies led to.

      2. Really, the only thing saving us from being 1984 is their incompetence.

        1. Again, the dystopia that we’ll be living in will be Brazil, not 1984.

          I need to go and re-watch that.

          1. It is Brazil or Phillip K. Dick. Read A Scanner Darkly sometime. Tell me that isn’t our government.

    2. Barn doors are open and the cows are gone. We await the harvest moon.

  8. BTW-Randy Barnett, the legal scholar who probably contributed the most to the Obamacare challenge, has recently filed a brief with Cato and the Electronic Privacy Information Center challenging an order to Verizon to turn over telephony metadata. It can be read here:…..ion-center

  9. I can expect no privacy from Google, and they can expect no business from me. It’s pretty simple. There stubborn belief that they own my correspondence and feel they can share it with whoever they want is why I’ve never used Gmail and why I abandoned their search engine ages ago.

  10. Is Mega’s vision of secure email inconceivable?

    1. Using existing e-mail protocols, probably.

  11. Encrypt every email.

    Dont send email to anyone without a public key that you have verified as theirs.

    Sure, there are still problems with this solution, but it works as well as anything.

    1. You only gots two choices: protect the pipe (VPN) or protect the package (encryption). Might as well do both, just in case.

      1. Even then, you’re sending the data over a 3rd party’s pipes, so no expectation of privacy.

        The whole thing is absurd and seems designed to negate any privacy. How can you communicate, other than face-to-face communications, without involving a 3rd party? You can’t.

        It’s like saying that you have a freedom of the press, as long as you don’t use any technology to produce the speech.

  12. If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place

    Tell that to the government!

  13. Neoliberal Kocktopus makes the argument that the users of gmail etc have no right to expect privacy from the service provider. At least, that’s what I understood. However, I think the service providers, by requiring passwords and logins, promote and basically accept that expectation. You can’t create a gmail account without a unique login and a password that meets at least minimum requirements. By doing so gmail itself creates an expectation of privacy.

    1. They also use https instead of http.

      That extends that expectation even more.

    2. That’s specious. Google broadcasts the fact that they’re “reading” your e-mails.

      1. If you have no expectation of privacy, then you shouldn’t mind google allowing anyone and everyone to access your account. If you have no right to complain when google gives the information to the government, then you also have no right to complain when google gives the information to me or anyone else.

        No expectation of privacy means just that, no privacy. Therefore, you full understand and expect the information to be read by anyone. Somehow I doubt you think that and thus you do in fact have an expectation of privacy. You just don’t want to admit as much.

      2. Google can’t prosecute me.

    3. authentication is not equal to privacy

      1. Yes it is. The only reason you have authentication is because you have an expectation of privacy. If there is no expectation of privacy, then there is no reason to have authentication. Authentication is nothing but a digital wall that keeps strangers from seeing your stuff. Saying it is not privacy is like saying “building a wall or closing your shades is not privacy”.

        1. Listen lawyer. There are many attributes people measure when talking about security. But in general they are authentication, access control, privacy, integrity, and non-repudiation.

          Google may require that you have a unique username and password to authenticate who you are to control access to your mail account so that you cannot later repudiate sending child porn to your uncle. And absolutely none of that will guarantee that your correspondence is private.

          1. Seriously? The sole purpose of having passwords is non-repudiation rather than privacy? You’ve basically conceded the debate by taking such an outlandish position.

            1. Hey dick head. ONE of the purposes of passwords may be access control. Access control MAY be for the purposes of privacy. Or access control might be for import/export compliance. Or access control might be for non-repudiation of financial transfers. Or lots of other things.

              Anyone that assumes a password guarantees privacy when dealing with a 3rd party is an idiot. Especially when the terms and conditions of the 3rd party service says it’s not fucking private.

              1. Kinneth that is dumbest argument I have read on here in a long time. Just because passwords can serve other purposes doesn’t mean their primary purpose isn’t privacy or that people who use them don’t look at passwords as a way to keep others out.

                At this point you have lost the argument and are just staying outlandishly stupid things. Between this and Camping in Your Park’s “It is totally okay to allow the murder of child molesters in prison” arguments, I am starting to wonder if Tulpa hasn’t started hijacking accounts.


    According to Google: “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.”

    Google is arguing they can read your email, not that anyone can read your email.

    Please be pissed off about the correct thing.

    1. No, they are arguing that can both read it and give it to the government if they choose to. And no, just because my mail goes through their server, doesn’t mean they can read it. If that were true, anyone who owns any server that runs a server that handles email traffic should be able to. I don’t think google would like that.

      Beyond that, if google wants to make their business model, “use free email but the price is we read it and use it to sell to advertisers” good for them. But first, they haven’t been honest about that. Most people have no idea that is what is going on. So what they are doing is fraud by deception. Second, the government is making email serves who offer a different deal that says they will encrypt and not read your email shut down. So we don’t have a choice anymore.


        In motion to dismiss a data-mining lawsuit, Web giant says people have “no legitimate expectation of privacy in information” voluntarily turned over to third parties.

        Plaintiffs in the case contend that Google’s automated scanning of e-mail represents an illegal interception of their electronic communications without their consent. However, Google, which uses automated scanning to filter spam and deliver targeted advertising to its users, noted that plaintiffs consented to the practice in exchange for the e-mail services. Google goes on to say that courts have held that all e-mail users “necessarily give implied consent to the automated processing of their emails.”

        The motion has nothing to do with whether or not the government needs a warrant to get your data from Google.

        1. Yes it does. If you don’t have an expectation of privacy, the government as well as google can read it.

        2. The 3rd party doctrine has to do with the 4th Amendment. John is correct here.

  15. To summarize:

    Google has been reading email to insert advertisements for going on a decade.

    If you sign up for a gmail account you agree to the terms and conditions, so you can’t bitch about it.

    If you send an email to a gmail account, you did not agree to the terms and conditions, and you can argue that Google is violating your privacy. That is the issue in the lawsuit. Google says tough shit. If you send email to a manager at a business don’t be surprised if his/her admin reads it first. And if you send email to a gmail user, you can’t be surprised if Google’s computers read your email first.

    The threat is the newly leaked information regarding the NSA demanding total access to Google records which include the text of all the emails they have read. Which is a matter totally unrelated to the lawsuit.

    1. No it is not totally unrelated. If Google wins its argument, you no longer have an expectation of privacy in your emails.. If that is true, then the government doesn’t need a warrant. You miss the entire point.

    2. Replace email with letter. Is that legal? I believe if anyone opens a letter not addressed to them it is illegal. Also I believe the cops need a warrant to look at your papers and effects.

      1. By Kinnath’s logic, FEDEX is totally entitled to read anything you pay them to ship.

        1. I suppose if FedEx had a user agreement that said, “we reserve the right to read your letters, eat half the cookies you send to your kids at camp and try on the sweater you just ordered from Sears,” then the user would forfeit the expectation of privacy. But, who would trust FedEx to ship anything if they did that?

        2. If the terms and conditions of the contract with FedEx says they can open every package you send and stick in a printed advertisement, then FedEx is not fucking private anymore. So don’t use them anymore.

          1. If the Feds shut down every other shipper without that agreement then what to you do? Cough* silent circle

            1. What will we do when the government makes privacy illegal? Start shooting or take in the ass I suppose.

              1. Unfortunately you are right. Voting doesn’t do any good and there are no free countries. But I don’t have to defend the companies and policies they set.

          2. I refused to sign up for a gmail account until I needed one for my new smart phone.

            I Do No Use this account for anything. I have never sent an email through gmail, because they tell you in the fucking contract that they read all your mail.

            Gmail has never been private.

            1. Gmail has never been private.

              The millions of people who use it have been lead to believe otherwise. And fuck you with a sledge hammer for helping the government invade everyone’s privacy by furthering the argument that privacy is subject to the expectations of the mob. Fuck you. If it is mine and I say it is private, it is private.

              1. Millions of customers make bad decisions every day.

                You missed my point entirely. If you signed a fucking agreement that your data is not private, then it’s not fucking private. Take your business elsewhere and let gmail die.

                And I am not helping the government do anything. Educating people that their expectations are wrong only helps those people make better choices.

                The real crisis is the government essentially forcing two upstart companies out of business that were trying to provide real secure email services.

                The real crisis is making sure the government doesn’t make privacy illegal.

                1. For the 100th time, no one signed such an agreement. And even if they did, that doesn’t mean I have no expectation of privacy and the government doesn’t need a warrant.

            2. See above.

              The standards of a private company and the standards of the government are different.

              A postcard, for example, is entirely unsecured. I still claim that the government needs a warrant to read postcards.

          3. And there is no such agreement with google. Google is claiming in court that they can casually read any email for any reason. But they are allowing their customers to believe just the opposite.

            1. Well, if you accepted the terms and conditions, then you have to live with Google reading all your email.

              But then again, some court somewhere said that click-through EULAs that no one reads can’t be enforced. So maybe you should just join the lawsuit against Google.

              1. Well, if you accepted the terms and conditions, then you have to live with Google reading all your email.

                Except that there is nothing in there that says that. You are just pretending there is because you lost the argument. And beyond that, just because google can read it, doesn’t mean you have no expectation of privacy.


                  Information we collect

                  We collect information to provide better services to all of our users ? from figuring out basic stuff like which language you speak, to more complex things like which ads you’ll find most useful or the people who matter most to you online.

                  How we use information we collect

                  We use the information we collect from all of our services to provide, maintain, protect and improve them, to develop new ones, and to protect Google and our users. We also use this information to offer you tailored content ? like giving you more relevant search results and ads.

                  You are right. They do not say “we read your mail”. They say “we collect your information”.

                  But it has been public knowledge since the service launched that they read the content of email to insert targeted ads.

                  1. Information security

                    We work hard to protect Google and our users from unauthorized access to or unauthorized alteration, disclosure or destruction of information we hold. In particular:

                    We encrypt many of our services using SSL.
                    We offer you two step verification when you access your Google Account, and a Safe Browsing feature in Google Chrome.
                    We review our information collection, storage and processing practices, including physical security measures, to guard against unauthorized access to systems.
                    We restrict access to personal information to Google employees, contractors and agents who need to know that information in order to process it for us, and who are subject to strict contractual confidentiality obligations and may be disciplined or terminated if they fail to meet these obligations.

                    1. Google says they will collect data about you and from you (including the content of your email) and they won’t disclose it except for all the ways that they will disclose it.

                      Read the whole privacy statement if you want to know who’ll they’ll disclose data to (it’s an extensive list).

                  2. “But it has been public knowledge ”

                    So, you basically lose the argument here.


                  How Gmail Ads work

                  In Gmail, ads are related to your Google Account.

                  With features like Priority Inbox, we work hard to help you sort through the unimportant messages that get in your way. We use a similar approach with ads. For example, if you’ve recently received a lot of messages about photography or cameras, a deal from a local camera store might be interesting. On the other hand, if you’ve reported these messages as spam, you probably don’t want to see that deal. This type of automated processing is how many email services provide features like spam filtering and spell checking.

                  Ad targeting in Gmail is fully automated, and no humans read your email or Google Account information in order to show you advertisements or related information.

                  1. By the way. This is the number 1 result for a google search of “gmail reads emails for ads”.

                    Pretty fucking easy to find actually.

                    1. “Pretty fucking easy to find actually.”

                      Right there when you sign up, in the EULA…

                      Oh no, you were wrong about that. They don’t tell you.

                      You lost. On every point.

  16. Privacy is now an antiquated concept.

    1. That is why next month reason will be changing our handles to our actual names with home address. We had no right to expect anything less.

  17. If I have no reasonable expectation of privacy in my email, then why set a password? Why have two-factor authentication for Gmail accounts? Could it be because I neither want nor expect others to go through my email?

    When Google sold the idea of trading some privacy for money, the idea was that they would match you to advertisers via algorithms. You would see ads when you viewed your email, and, sure, the emails they have are mined for data that produce valuable demographic information for advertisers. Sure, my information was being shared in vague, depersonalized manner, but it wasn’t as though my private communications were being sold to the highest bidder.

    But I don’t expect them to allow third parties to read my email. If I did, I wouldn’t bother with the password. Or, more realistically, I wouldn’t have set up a Gmail account to begin with.

  18. Could it be because I neither want nor expect others to go through my email?

    It doesn’t matter what you want. Ask Google why they required two-factor authentication. I expect their goals only partially overlap with yours.

    1. Ask google what they tell their customers and are totally content with their customers thinking. Stop insulting everyone’s intelligence by pretending we are so fucking stupid we will believe that google doesn’t profit by convincing their users their email is private.

    2. According to Google’s materials on the matter, two-factor authentication enhances the user’s privacy. Surprisingly, they didn’t mention non-repudiation. That may be a side-goal they have, but that’s neither here nor there.

      1. Bingo. Google tells its customers the emails are private.

  19. So what if a law firm establishes an email system for their clients… Let’s say that anybody who signs up for this email service pays a small fee that places the firm on retainer. All of the email users are clients of the firm and any information, including the emails stored on the servers, would constitute privileged information subject to the magic words attorney client privilege. Could it be that simple to gain the ability to tell the feds to fuck off and get a warrant?

    1. Now you’re thinking strategically. Force the powers that be to fight amongst themselves.

    2. Would a warrant even be valid in that case?

      I dont think a warrant allows access to a lawyers notes from a client meeting.

      1. You *can* get a warrant for lawyer’s notes – it would require you to provide cause to believe that the notes contain evidence of an upcoming crime though. And it would be subject to a huge amount of scrutiny.

        That’s why cops just bug the prison phones and conference rooms – they have more success ‘asking for forgiveness than asking for permission’.

        1. Plus, even if they don’t use those recordings directly, it allows them to focus their “untainted” line of investigation and know what to look for.

    3. Well, we’ll just get rid of attorney client privilege. If we don’t, the terrorists will win.

      /the feds

      1. How is that going to happen? Half the government is made up of lawyers.

    4. IANAL but I’m guessing the response will involve something along the lines of not a bona fide attorney client relationship therefore, oh, never mind, FYTW

    5. Brilliant! Set it up, and make a googlezillion dollars!Better idea than facebook for sure

  20. Is Neoliberal Kochtopus Tulpa’s new handle?

    1. Libertarians have blind spots just like everyone else. Here Kochtopus and Kinneth see the term “private party” and “contract” and immediately think everything about it must be totally kosher, facts or logic be damned. It is just a Pavlovian response.

    2. Go screw. It isn’t my problem you don’t know the law.

      1. No, your problem is that you’re an idiot.

  21. The link at the very bottom of the story is missing.

  22. The real problem with the ‘third party exception’ is not that it exists – I can accept that the third party I contract with to facilitate my communications may intercept them. That’s something that can be handled by contract.

    The real problem is the assumption that because I allow *one* third party access to my stuff that means that the *government* also has free access.

    I’d say that both Google and I have a property interest in my search records and *either* of us may voluntarily release that data to the government (assuming that a contract between us specifying otherwise doesn’t exist) but that the government should not be able to compel blanket disclosure from Google due to the bare fact that I allowed Google to take possession.

    As I’ve said before – this exception to the 4th amendment opens up such a huge loophole in the 4th that it effectively destroys it.

    By this logic, no apartment/condo/rented/leased dwelling or workspace is safe from random searches because in all those cases you allow maintenance staff (at a minimum) access. You’re home isn’t safe because you (have to) allow meter readers on. If a meter reader can come on then why not a cop? If a meter reader can look in a window, why not a cop? If a cop can look in the window, why can’t he come in?

  23. KM-W… you use gmail?! And you let them keep your entire list of contacts and distribution lists on THEIR servers?

    Silly girl!

    I use Outlook and keep all of MY contacts on my pc’s disk and security software to keep intruders out.

    Some spammers have used my real email address to spam others, and I get the invalid bounce-backs and copies all the time, but it’s lots more often that I get junk from other folks whose email lists have been hacked, and I just reply to them with “change your login and password… you’ve been hacked.”

    And many just write back to say “Thanks!… Done!”

    Once a message is out, it’s open season for NSA and any other boogiemen, but to put your contact list on a commercial server?! Wow.

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