Changes to the Google terms of service, announced recently, clarify that all incoming and outgoing emails to and from Gmail accounts are analysed by software.
Google now clearly specifies that all emails sent to Gmail accounts, even if you don’t use Gmail yourself, will be scanned.
That’s a lot of emails. Over 425 million people use Gmail around the world. Millions more, who use Hotmail, Yahoo or other email services, write to people who have Gmail addresses.
Privacy experts are concerned about the implications of the changes. Last year in a class action lawsuit filed by Google users in the US, Google was accused of breaking US wire-tapping (telephone hacking) laws when it scans emails to target ads. Lawyers were surprised when Google said in a court filing that people sending email to Gmail had no “reasonable expectation” that their communications are confidential. This coincided with the revelation that Google had provided information to the National Security Agency on US citizens and foreign nationals.
Part of Google’s defence in the wire-tapping claim is that sending an email is like sending a letter via the post office: “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”.
But the claimants argue that sending an email is very different to sending a business letter. Most people do expect their emails to be private. They don’t expect a virtual personal assistant or secretary to be opening their email. They especially don’t expect it when they’re communicating about medical issues, their children, or aspects of their lives that they wouldn’t necessarily put in a business letter which might be opened by a secretary.
Kate Wilson, a barrister at One Brick Court chambers, who specialises in media and information law said:
“People who have signed up to Gmail may have agreed to this, but those sending emails to a Gmail account user have not. They haven’t consented to the use of their information. There are serious privacy implications for non-Gmail users, in particular if Google can relate the information obtained from scanning emails to the sender of the email, by way of IP address or other identification from the sender’s email address. “
In other words, Google may be able to work out who has written the email – and may be then holding data on individuals which potentially infringes European data protection laws. In the light of the Google Spain judgment, this may complicate their position even further.
“This practice may lead to claims by non-Gmail users for misuse of private information and breaches of data protection laws” added Ms. Wilson.
Of course, Google is also collecting data from your YouTube browsing, your map searches and your Google searches themselves. Industry insiders say that everyone using Google services knows the score.
“You don’t pay for these services, so ads have to be targeted in some way. One thing we know is that people don’t want to pay for services, and are willing to have their information tracked in order to avoid paying” says one digital media director.
As Google put it:
“Our automated systems analyse your content (including emails) to provide you personally relevant product features such as customised search results, tailored advertising and spam and malware protection“.
Federal District Judge Lucy Koh in San Jose, California has already rejected Google’s attempt to dismiss the wire-tapping case by rejecting its argument that users agreed to scanning when they accepted its terms and conditions.
The Google lawsuit in the US combines several claims from 2010 – 2012 by Gmail users and email services in states including Texas, Pennsylvania and Florida. It also includes people who have used Google’s apps for education. It appears that Google used the technology to extract information from unopened, deleted or emails which were accessed by mobile phones. This technology, the claimants argue, is equivalent to hacking into your emails.
Google’s changes to its Ts and Cs matters. Not just because the company is in the middle of a contentious lawsuit, but because it dominates online searches. Anyone using Google services – which is almost anyone who goes online – needs to understand what they’ve signed up for. And anyone who hasn’t signed up for Google services, needs to understand what is going to happen to private communications sent to Gmail addresses.
Dina Shiloh is a solicitor at Mishcon de Reya. She specialises in defamation, privacy, and harassment