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Thursday, April 17, 2014

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Chanson de Roland

I am a former user of Google's services, including Gmail. I remember when I discovered that Google was scanning my emails. I had communicated with two physicists, and shortly thereafter, I started getting advertisement for items like electron microscopes and gas spectrometers. My work as a lawyer often takes me to new and uncharted territory, but I don't have much use for electron microscopes. I do, however, have the greatest need for absolute confidentiality in my communications, subject only to the limitations on attorney-client privilege. I also have a professional obligation to maintain clients' secrets and confidences. So I carefully read Google's then privacy policy and discovered that Google scanned my emails, after which I quickly stopped using and then later cancelled my Gmail account.

Yet, I am often forced to communicate with people who use Gmail, and so apparently my emails to them are scanned. The legal problem here is that I don't have any contractual relationship with Google, as I have cancelled my Google account. Therefore, I don't have what lawyers call privity of contract with Google, that is, there is no contract between Google and me, which would arguably give Google the right to scan my emails, nor does Google provide any warning to those who communicate with Gmail addresses that their email will be scanned.

So, by what right does Google scan incoming emails? As far as I can see, Google doesn't have right to scan incoming emails, at least, as is the case, without warning the sender that his email will be scanned. Perhaps Google argues that its users, with whom it does have privity of contract, have consented to show the email that they receive from Google, just as anyone can show their personal letters to the world, unless prohibited by some legal duty. But, of course, Google’s Gmail users haven’t agreed to any such thing. Most never read Google’s license to scan your emails and collect your personal information, a.k.a. its privacy policy, and they certainly, even if they have read it, haven’t consented to Google prying into their personal emails, nor have they consented to breaching their interlocutor’s privacy by revealing to Google et al. a email that was meant only for them.

So I think Google should lose its case, at least with respect to incoming emails, and the court should order Google to stop scanning incoming emails, where it has no privity of contract with the sender and at least where it hasn't warned the sender that the email which he sends to Gmail users may be scanned, so that the sender can at least either decline to send the email or edit it to reflect that Big Brother Google will be reviewing it.

Another interesting question is whether Google could block from its Gmail users the emails of those who user other email services but who don't consent to having their emails to Gmail addresses, sent emails, scanned? The answer, of course, should be no, both on antitrust grounds, as that would hinder competition among providers of email and Internet services, and because the rules that govern the Internet, as promulgated by ICAN and others, require that all ISPs, who offer email, must use protocols that permits anyone to send and receive email from anyone else using those protocols. So Google may not, as a matter of law, balkanize the Internet to an exclusive domain for just Gmail users and those who consent to let Google scan their sent emails, because that arguable violates U.S. antitrust law, FCC rules governing the Internet, and/or ICAN's rules governing the Internet.

But, of course, it is time that we grew up and understood that nothing is free and that the old adage of the Internet is true: If you’re not paying for it, you’re not the customer; you’re the product being sold.

For a company that includes the motto "Do no evil" in its corporate charter, as an aspirational goal, Google's recent conduct is taking it on a course where it will be as far from that aspiration as hell is from heaven.

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