When you send or receive email, you usually feel confident that your messages are private and confidential, right?  After all, imagine if the world knew of all that outrageous and intriguing content we include in our emails.  It’s hard to accept that some stranger could be reading it, right?

The Fourth Amendment prohibits unreasonable searches and seizures, and, while the Constitution does not specifically mention a right to privacy, many Courts, including the Court of Appeals for the Sixth Circuit, have recognized a right of privacy.  Dean William Prosser, the author of one of the leading treatises on tort law in the United States, recognized that people have a right of privacy – a right to be free from intrusion upon one’s seclusion or solitude and from public disclosure of embarrassing private facts.  This of course begs the question: if someone was reading our emails, would they be violating our right of privacy?

According to Paul Szoldra of Business Insider, 400 million people use Google®’s Gmail® service.  In 2012, several Gmail® users brought a class action suit against Google® because of Google®’s newly-revised March 1, 2012 privacy policy.  The users contended that Google® was no longer allowing consumers to keep information gathered from one Google® product separate from information gathered from other Google® products.  The users also contended that the March 1, 2012 policy took information from a consumer’s Gmail® and Google+ accounts for use in a different context.  The users took issue with Google®’s new policy, claiming that it was compromising users’ expectations of privacy.  However, the Northern District Court of California dismissed the users’ claims.  The Court’s main reasoning behind the dismissal was that the users could not demonstrate enough of an injury to warrant relief.  In addition, lawyers for Google® referred to Supreme Court precedent which recognized that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

Google®, in its brief to have the class action complaint dismissed, stated that email users must expect that messages will be subject to “automated processing,” essential to making the Gmail® service work.  However, it’s precisely this “automated processing” that has drawn the ire of Consumer Watchdog and Gmail® users.  A response that opposes Google®’s brief argues that Google® is trying to “capture the [email] authors’ actual thoughts for Google®’s secret use.”  Meanwhile, Google® stressed that the automated processing is crucial to enabling the Gmail® service, for it is this automated processing that helps with spam filters, targeted advertising, and other Google® services.  Google® also noted that a non-Gmail® user sending an email to a Gmail® user should also expect Google® to use automated processing.

But, is this fair?  We know from the Patriot Act that our private information can be made available to authorities.  But why should Google® get the right to access our private emails?  One thing is certain – Google® will continue to assert their need to have access to these emails in order to maintain its service.  Users will likely remain skeptical.  It is reasonable to anticipate that the debate between consumers and companies will continue for decades.  Yet, with the force of the law behind its actions, Google® carries the upper hand.  Perhaps we all ought to be careful next time we hit that “compose” button…

(Neeraj Joshi)