[Politech] Why the "Gmail scanning incoming email" argument is a red herring [priv]

From: Declan McCullagh (declan@private)
Date: Fri Apr 30 2004 - 08:34:26 PDT

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?


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 

-------- 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>


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
President, TaxJEM Inc (computer assisted tax law instruction)
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: 

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

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