Various online reports have mischaracterized and misquoted a Google legal brief in a class action case In re Google Inc. Gmail Litigation. The reports (which I won’t dignify with links) claim that Google said its Gmail users should have no privacy expectations. These statements are misleading to the point of being journalistic malpractice.
The case involves complaints both by holders of Gmail accounts and by persons who send email to Gmail accounts, but are not themselves Gmail account holders. Their complaint asserts that Google cannot scan email for the purposes of targeted advertising – because that amounts to interception of the email. Irrationally, the plaintiffs don’t assert that Google cannot scan (so-called deep packet inspection) email to prevent malware, block spam, automatically sort content into folders, etc.
As to those senders, Google is a third party ECS provider. Google’s brief said “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 is well settled law.