It’s time for a finer-grained definition of on-line privacy. When consumers hear “Google Mail users shouldn’t expect privacy“, it quickly gets flattened into an “all or nothing” proposition that just doesn’t work in the real world.
The decision cited in the quote is from the Smith v Maryland (1979), a case that is way over-applied in the modern age. It’s troubling that Google’s lawyers cited it, and it’s a precedent that should be sharply narrowed given the qualitative difference in intrusiveness between a pen register and the contents of emails.
In face-to-face life, we have a very finely graded sliding scale of privacy. It’s enforced by a host of social constructs and mores (closing the door when you’re in the bathroom), physical layout (frosted glass for bathroom windows), policies (e.g., privacy policies), and laws (reasonable expectation of privacy).
Privacy should be just as nuanced online. There is an enormous qualitative difference between:
- your email provider looking at your email to execute automatic filtering rules that you set up
- your email provider using the contents of your messages to show you more relevant search results and/or advertisements
- your email provider using the contents of your messages to send email to all your friends about your inner thoughts
- your email providing your email as fodder for a Federal investigation because you used certain Words Of Interest
- your email provider’s employees sitting around on Friday nights and laughing at emails they’ve flagged as especially entertaining
- the spy who loves you, showing up on a Tuesday evening with flowers, because your email to your friend said you were lonely and looking for a good man, and your calendar indicated you’d be home then
Each of these has its own level of creepiness and intrusion, from ‘none’ to ‘criminal stalking behavior’.
Let’s talk about these things separately, rather than squashing them all together into a single, untenable bucket called “privacy”. Then let’s write laws that adequately balance the rights of individuals, the needs of companies, and the demands of keeping a populace safe.