This is part one of a two-part column.
A hot privacy topic earlier this year was Gmail, a new e-mail service expected to be offered universally by Google in the near future. Gmail created a mini-firestorm among privacy advocates, libertarians, legislators and others. Now that things have cooled a bit, I thought I would offer my two cents. Actually, I will offer four cents, since I intend to spread this discussion over two columns appearing in DM News.
A couple of features of Gmail drew controversy. Gmail is a free Web mail service that includes a gigabyte of storage for each subscriber. That’s a lot of storage, and it may encourage people to store their e-mail for a long time. That will make the mail vulnerable to third-party review (such as government subpoenas) or other unwanted use. Google’s announcement prompted other e-mail providers to increase the amount of free storage that they offer.
The storage feature wasn’t the main event. Everyone can decide whether to keep or toss e-mail, just as they do today. I know people who still have the first e-mail they received years ago. Others, myself included, toss e-mail at the earliest opportunity. I only store mail for a reason, and I ruthlessly erase mail when the reason evaporates. You can’t be too careful. Erasing e-mail after an investigation starts or a subpoena arrives produces unwelcome results. Obstruction of justice is easier to prove than an underlying crime.
The big issue with Gmail was Google’s intention to display contextual marketing to the subscriber based on the actual content of the e-mail communication. Google planned to scan an incoming message and display “sponsored links” along with the text. Google made clear that the ads would be visibly separated from the text. For example, if the message discussed gardening, a link to a garden supplier might appear along with the message. The advertising would pay for the enhanced storage that Google offered, and it obviously would be a profit center for Google.
Privacy advocates objected strongly that the Google service sets potentially dangerous precedents and diminishes expectations of privacy in e-mail communications. They also argued that Google fails to obtain the consent of all parties to the e-mail. The sender would not know what was happening to a private e-mail message. Google responded that a computer would scan the message so no invasion of privacy could result.
I think that argument may have set off the advocates more than anything else. It’s like saying that computers can’t invade privacy, only humans can invade privacy. However, computers make all kinds of decisions about us: whether we can fly on an airplane, whether we can qualify for a mortgage, whether we get a traffic ticket, whether we receive a particular solicitation and dozens of other things.
The idea that a computer cannot affect someone’s privacy is just plain silly. If anything, the routine compilation of personal information in private-sector and government computers constitutes one of the major threats to privacy. Modern privacy laws developed largely in response to the threats presented by computers. Google is way off base here.
Google has a better case when it compares its scanning of content for marketing purposes with the scanning of messages for spam or viruses. Some ISPs provide these services and block e-mail from reaching the recipient. The counter argument is that some scanning of e-mail may be a necessary element of providing e-mail service whereas marketing based on content is an entirely different animal.
I think Google may have a point about virus scanning. Once you peer into e-mail for screening purposes, you have opened a door. That doesn’t mean and shouldn’t mean that anything goes. But to borrow a thought from the snail mail world, a message is either “sealed against inspection” or it isn’t. Once you open a message for any purpose, the slope becomes steep and slippery. It can be hard to distinguish one use from another.
Some libertarians joined the argument here. Their take was that if people are willing to accept marketing, they are free to do so. There are plenty of ways to send and receive e-mail. People who object to Google’s advertising can use another provider.
All sides have at least some reasonable arguments, but I think that there is more depth to this debate. The real stakes here are the future of e-mail. We have moved well past arguing whether e-mail is like a telephone call or snail mail. It’s a different animal. Still, it is worth noting that if phone companies decided to listen to conversations and offer ads based on content, the public would not tolerate it for one second. The same would be true if the U.S. Postal Service monitored mail to add advertising either inside or outside the envelope. And these activities probably would be illegal under current law.
The old principle that originated with snail mail is that neither service providers nor police can examine content, at least not without judicial approval. Though it is a good principle, the problem is that distinguishing between the content of a message and the “envelope” it comes in can be hard with e-mail and with Internet activities in general.
These are some of the issues that arise from Google’s Gmail service. Next month, I will look at others.
