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Google: Gmail users shouldn't expect email privacy

Critics call revelation 'a stunning admission' as Google makes claim in court filing in attempt to head off class action lawsuit

Dominic Rushe in New York
theguardian.com, Wednesday 14 August 2013 15.54 BST
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Google said the plaintiffs were making 'an attempt to criminalize ordinary business practices' that have been part of Gmail since it began. Photo: Walter Bieri

Gmail users have no "reasonable expectation" that their emails are confidential, Google has said in a court filing.

Consumer Watchdog, the advocacy group that uncovered the filing, called the revelation a "stunning admission." It comes as Google and its peers are under pressure to explain their role in the National Security Agency's (NSA) mass surveillance of US citizens and foreign nationals.

"Google has finally admitted they don't respect privacy," said John Simpson, Consumer Watchdog's privacy project director. "People should take them at their word; if you care about your email correspondents' privacy, don't use Gmail."

Google set out its case last month in an attempt to dismiss a class action lawsuit that accuses the tech giant of breaking wire tap laws when it scans emails in order to target ads to Gmail users.

That suit, filed in May, claims Google "unlawfully opens up, reads, and acquires the content of people's private email messages." It quotes Eric Schmidt, Google's executive chairman: "Google policy is to get right up to the creepy line and not cross it."

"Unbeknown to millions of people, on a daily basis and for years, Google has systematically and intentionally crossed the 'creepy line' to read private email messages containing information you don't want anyone to know, and to acquire, collect, or mine valuable information from that mail," the suit claims.

In its motion to dismiss the case, Google said the plaintiffs were making "an attempt to criminalize ordinary business practices" that have been part of Gmail's service since its introduction. Google said "all users of email must necessarily expect that their emails will be subject to automated processing."

According to Google: "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 communications service] provider in the course of delivery."

Citing another privacy case, Google's lawyers said "too little is asserted in the complaint about the particular relationship between the parties, and the particular circumstances of the [communications at issue], to lead to the plausible conclusion that an objectively reasonable expectation of confidentiality would have attended such a communication."

Simpson, a long-term Google critic, said: "Google's brief uses a wrong-headed analogy; sending an email is like giving a letter to the Post Office. I expect the Post Office to deliver the letter based on the address written on the envelope. I don't expect the mail carrier to open my letter and read it.

"Similarly, when I send an email, I expect it to be delivered to the intended recipient with a Gmail account based on the email address; why would I expect its content will be intercepted by Google and read?"