ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, October 14, 2013

Some Side Notes on Nancy Kim's Post

Judge KohNancy posted last week on this lawsuit that claimed that Google’s practice of scanning users' emails violated federal and state wiretapping laws. Nancy discusses the excellent opinion of Judge Lucy Koh (pictured) in the case.  

I have a few observations, some of which take me beyond my areas of expertise.  My university switched over to Gmail a couple years ago, so our work e-mail is now Gmail.  I do not recall there being an option to opt-out of the switch over, so if Google eventually gets its way and is permitted to read its users e-mails:

  • Can employees really be said to have consented to Gmail's terms of service?
  • What is the status of confidential communications that are sent on our university accounts?
  • Is it a breach of confidentiality if employee A uses a university Gmail account to discuss a confidential personnel decision with employee B?  
  • Is it a breach of confidentiality if a faculty member or staff member responds via a universityGmail account to a student complaint relating to sexual or race-based harrassment?
  • Is attorney-client privilege defeated if a university staff member communicates with university counsel via a university Gmail account, since the parties have allegedly agreed that Google can read their communications?
  • Can anyone claim a reasonable expectation of privacy in their electronic communications if they are held to have consented to sharing those communications with a third party?
  • If Google's terms of service include a statement that Google may, if asked, share both data and the contents of your e-mails with federal or state law enforcement agencies, would that elminate any possible claims of constitutional violations in connection with NSA datamining?

NSAAs the last bullet point suggests, I am curious about the relationship between data-mining by internet service providers and data-mining by the U.S. government.  It is hard to generalize about people's feelings about such matters, but my impression is that there is a large sector of the population that considers Edward Snowden a hero for having revealed massive invastions of privacy by the U.S. government.  At least some of these same people respond with a shrug to revelations of Google's interpretation of its terms of service based on some version of the idea that "everyone knows" that Google's profit model is based on exploiting the personal information of its users.

I think it is equally true that, at least since the Bush Administration, "everyone knows" or should have known that the federal government has established a massive datamining operation whose purpose is to screen communications for evidence of terrorism or terrorism-related activities.  Nonetheless, my impression is that there is more anti-NSA outrage than there is anti-Google outrage.  This is (to me) counter-intuitive, since most people believe that combatting terrorism is an important national interest and that permitting Google to identify our habits of consumption is not.  So, why aren't the levels of outrage reversed?  

Some theories:

  1. People buy Google's argument that when we use Google we consent to all of its terms of service (but what of the people who send or receive e-mails to people with Gmail accounts?);
  2. NSA datamining is arguably a constitutional violation, while Google's reading our e-mails is arguably only a violation of a statute;
  3. The NSA doesn't market any useful products, but Google is awesome;
  4. Google, while powerful, cannot use personal information to mess with individual liberties in the ways that the NSA can


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You raise a lot of important questions and the answers are not clear. As for why public reaction to NSA spying is so different from public reaction to Google spying - one reason is that Google (and FB, etc) are masters of marketing. They have somehow convinced us to trust them even though they keep changing their terms of use. The herd mentality and bystander effect are both at work here but basically I think it comes down to the public image that each entity projects. Google is in that business - marketing, PR - whereas NSA is not.

Posted by: Nancy | Oct 15, 2013 8:23:08 AM

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