Lavabit is  no more. Silent Circle has shuttered  its secure email service. All the major email providers appear to be  complicit in one form or another with PRISM, the NSA’s clandestine email surveillance program revealed by The  Guardian in early June. And now Google’s legal team seems to be spraying  gasoline on the controversy after filing a motion in mid-June that, among other  things, argues users who access Google services like Gmail shouldn’t expect  their transactions to remain secret.

The salient quote was surfaced by Consumer Watchdog, a nonprofit California-based  consumer rights group founded in 1985. It’s from a 39-page motion filed by Google on June 13, 2013 in hopes  of dismissing several disparate complaints that allege the company violates  wiretap laws by poking around in email to engage in targeted advertising.

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 communication service] provider in the course of delivery. Indeed,  “a person has no legitimate expectation of privacy in information he voluntarily  turns over to third parties.”

That last sentence, which refers explicitly to non-Gmail users who send email  to Gmail users, does sound damning. Is Google’s legal counsel right? Do people  who interact with Gmail have no rightful expectation to privacy when voluntarily  turning information over to third parties like Google? Consider what comes  next in the motion before dusting off the pitchforks and torches.

Referring to the 1979 court case from which the above quote was extracted,  Google writes:

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.”

Google does seem to be semantically overreaching when it claims non-Gmail  users have no rightful expectation of privacy: who doesn’t expect  (naively or no) that their communications will remain private when sending or  receiving email? But the point the company’s making involves pragmatics:  email systems have to parse emails in order to process and route them properly.  That’s a by-design thing. Fretting about it’s a little like expecting a snail  mail carrier not to read the outgoing and return addresses on an envelope.

But that’s only a fraction of what Google’s up to in this motion, most of  which talks about Gmail users themselves, including this section (from the  introduction):

In short, the company claims both federal and state wiretap statutes exempt  it from liability related to conduct — both for Gmail and non-Gmail users — that  occurs in the ordinary course of business. Google, of course, is appealing to as  wide a definition of “conduct” as you’d imagine a company like it would,  dismissing complaints about email scanning because it says you’ve consented to  be scanned, whether you’re a native Gmail user or exchanging emails with a  native Gmail user.

As Google puts it in its privacy policy explainer:

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.

Assuming Google’s right legally speaking — and don’t confuse what’s legal  with what’s ethical — the company has a point. Throughout the motion, Google’s  essentially saying that it does what it does, that it has a legal right to do  what it does, that it’s been very clear about what it does, and  that anyone accessing a service like Gmail, whether natively or indirectly, is  beholden to its terms of use, including automated rifling through email  content and using that information to craft targeted ads.

That, I suspect, is why you have Consumer Watchdog director John Simpson  saying:

“Google has finally admitted they don’t respect privacy. People should  take them at their word; if you care about your email correspondents’ privacy  don’t use Gmail.” The message isn’t sue Google, it’s quit Google."

Indeed, unless we believe Google hasn’t been clear about what it does or  doesn’t do, the legal onus isn’t on Google to stop scanning every Gmail message  it’s parsing; it’s on users opposed to either lobby the company to change its  behavior, or abandon the service, whether that’s shifting to another email  provider (problematic, especially if your concerns extend to government  snooping), opting for self-hosted and/or encrypted email (the  do-it-yourself route, i.e. build your own email server), or investigating  peer-to-peer email services (server-less, secure, anonymous…supposedly).

After 9/11, an old Ben Franklin quote started circulating: “They who can give  up essential liberty to obtain a little temporary safety, deserve neither  liberty nor safety.”  Replace “a little safety” with “lifestyle conveniences” and  you have an applicable analogue for what’s happening as we hand our digital  correspondence off to massive memory banks controlled by a handful of groups  increasingly willing to challenge traditional expectations about privacy in  hopes that product momentum — bolstered by the whole free-with-ads angle — will  outpace consumer paranoia.

Update: Google emailed this over earlier last evening:

We take our users’ privacy and security very seriously; recent reports  claiming otherwise are simply untrue. We have built industry-leading security  and privacy features into Gmail — and no matter who sends an email to a Gmail  user, those protections apply.

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