Scroogled Redux: Google, Gmail, Privacy and You

Tens of millions of users around the world rely on Google's Gmail service as their email provider, but a recent legal filing from the search giant just might be enough to sway a few of them to choose a different solution. Google is currently going through the motions in the judicial system to defend itself against a class-action complaint over its email data mining practices.

The big question in this case, in my opinion, is about privacy. Does your Google Gmail account belong to you? Does Google have the right to read and monitor your email if you use Gmail?

Apparently Google's Gmail users don't necessarily have the legal rights to the full privacy they might expect.

"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," Google's legal brief stated.

Google brief goes on to note that "… as numerous courts have held the automated processing of email is so widely understood and accepted that the act of sending an email constitutes implied consent to automated processing as a matter of law."

Oh really?

If I had an assistant (yeah ... sure) I would expect him to leave the mail on my desk unless I said otherwise. I wouldn't expect him to open the mail unless I had explicitly told him to do so. I'm OK with the processing—by that I understand to be the handling, delivery and sorting, but not the opening. That's where I suspect that Google's has crossed a line that could make some people feel very uncomfortable.

Microsoft has been taking aim at Google's Gmail privacy concerns for some time by way of its "Scroogled" campaign. In a somewhat heated discussion at the RSA Security conference earlier this year, Keith Enright, senior privacy counsel at Google, called Microsoft's Scroogled campaign "intellectually dishonest."

At that time, Enright argued that Google is using automated algorithms to look at the email, which then enables the placement of contextual advertising.

I personally don't have a problem with ads in Gmail (heck, I've even clicked on a few relevant ones). I do have a problem if Google is reading my email without my consent. (For the record, I don't believe that Google is doing that. Placing ads by way of an automated algorithm is a lot different from a human reading my mail.) Then again, if you're using Gmail as a free service, the terms of use (as well as the End User License Agreement) are really in Google's hands and can change at its discretion. For corporate users who use Google Apps, ads don't appear and I would expect that means the same "processing" that enables Google to place the contextual ads doesn't occur.

It's very important for enterprise IT users to understand the potential risks and limitations of a freely provided online service for which you have no explicit guarantees. I suspect that on-premises, in-house email systems will continue to be the technology of choice for those who are particularly risk-averse when it comes to privacy.

Sean Michael Kerner is a senior editor at eWEEK and InternetNews.com. Follow him on Twitter @TechJournalist.