I'd respond to Jim's typically thoughtful comments about incoming email to Gmail accounts this way... I don't think it's a "problem." I think it is an objection, but one that does not rise to the level of encouraging government action to ban Gmail (as EPIC and others have done). Nor does it rise to the level of likening a voluntary Web-based email service to Carnivore or TIA (as EPIC has done). Perhaps it might be helpful to find the right metaphor. If someone sends me a FedEx or UPS envelope, there are few limits to what I can do with the contents. (Yes, copyright law, contract law, trade secret law, and so on limit my actions in theory, but not for most people in practice.) I can authorize the mail room in my workplace or condo building to open the envelope or forward it to a third party unopened. I can take the letter and tape it to my office door if it's funny or crankish. I can authorize my secretary to open the envelope, scan the contents, and include additional information along with it -- perhaps a Dun and Bradstreet analysis of the relevant firm if it the envelope had contained a business proposal from its CEO. I can even sign up for an outsourced secretarial service that might perform the same function *for free* in exchange for inserting a context-based advertisement in the stack of papers that will be delivered to me. All these are perfectly legal and socially beneficial ways to handle physical letters sent through fax, FedEx or UPS. They represent the physical analogue of Google's Gmail service. Why should we impose *more* restrictions on the same concept in electronic form? -Declan PS: My comparison does fail in one way: it is too limiting. Folks trying to reach a Gmail user have more options than their real world counterparts. They can send a one-line email message with *no* real content that includes a URL where the full text of the communication can be found. They can turn to instant messaging. They can use encryption. But they do not have a right to demand that Gmail be banned simply because they don't want their email scanned -- any more than the sender of a business proposal would have a right to outlaw that secretarial service. -------- Original Message -------- Subject: Re: [Politech] Cato's Adam Thierer criticizes EPIC's anti-Google"lunacy" [priv] Date: Fri, 30 Apr 2004 10:01:49 -0400 From: James Maule <Maule@private> To: <declan@private> Declan, I'm confused. I thought the problem was that people NOT using google for their email who send emails to people who DO use Google would have the contents of their messages examined, parsed, stored, and whatevered by Google. If that is not the case, then Mr. Thierer makes a good point. If it is the case (as others have alleged) then the problem isn't solved by avoiding the use of Google for email. And I'm not so sure encryption prevents the problem unless the Google user moves the encrypted message off google before decrypting it. Can anyone clear this up? Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 maule@private http://vls.law.vill.edu/prof/maule mauledagain.blogspot.com President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Maule Family Archivist & Genealogist (www.maulefamily.com) -------- Original Message -------- Subject: Re: [Politech] Cato's Adam Thierer criticizes EPIC's anti-Google "lunacy" [priv] Date: Fri, 30 Apr 2004 11:48:16 -0300 From: Stephen Downes <stephen@private> To: athierer@private CC: Declan McCullagh <declan@private> References: <40925753.5080708@private> Declan McCullagh wrote: > From: Adam Thierer <athierer@private> > > Oh brother, I can't take this lunacy from the privacy absolutists > anymore: > (1) What part of VOLUNTARY is it that these privacy fundamentalists do > not understand? How many times and in how many ways must it be said: > YOU DO NOT HAVE TO SIGN UP FOR THIS FREE SERVICE! This email does not take into account that there is a third party involved who did not sign up for the voluntary service: the person who sends or receives email from the person with a Google account. There is the usual expectation (often stated explicitly in email footers) that an email sent to a second party is for their eyes only, and should not be intercepted, read, or otherwise used by a third party without the sender's consent. The sender will very frequently not be a member of Google's service and will therefore not have authorized Google's use of this content. It may be argued that the sender, by sending to a Google account, thereby implicitly accepts Google's terms of service, but a moment's reflection shows that this is unworkable, as it would require, before any email is sent, that the sender review the recipient's provider's terms of service (assuing they are accessible to someone who does not have an account). It seems to me clear that a sender should have certain expectations regarding content via a service provider with whom he or she has no contractual relationship. The argument is that Google, in scanning email contents, breaches this expectation. Certainly it seems to me grounds for at least a reasoned enquiry, if only to determine what legislation, if any, ought to govern such transactions. And in the absence of an effective contract, it seems to me that some legislation is probably necessary, since as we know some commercial enterprises, when given a carte blanche, will abuse it. It is not clear that Google should simply be halted in its tracks, or that restrictions already rpoposed are appropriate, since there are many cases in which scanning and interpretation by third parties is appropriate: the interception of spam and email viruses, for example. But it is clear that there is a line here, which divides the use of senders' information for commercial purposes and the use of senders' information for political purposes on the one side, as being unacceptable, and the use of information in a more limited, controlled way to improve service, such as spam filtering, on the other. It does seem clear to me that the issue is rather more fine-grained than the slogan filled email cited above would suggest, and is much more complex than a mere voluntary commercial transaction between two reasonable (and reasonably informed) parties. There are limits even to what voluntary contracts may enable, and in cases where they involve third parties, these limits ought to be clear and clearly enforced. -- Stephen --- Stephen Downes ~ http://www.downes.ca ~ stephen@private ----- End forwarded message ----- _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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