David Link, who works for Senator Figueroa — the California legislator who’s talking about outlawing google’s new free e-mail with customized advertising service — writes:
The Senator has represented a good portion of the Silicon Valley for the twelve years she has been in the legislature, and has earned the respect of much of the high-tech community for her concern about the unique and challenging issues this industry raises.
More important than that, though, the issues with Google’s proposal go a bit deeper than just the Nanny State pejorative would suggest, and I wanted to offer some of thoughts for you to consider.
After speaking with Google’s policy and legal staff, it became clear to us that Google had not thought through some of the key problems of consent that G-Mail raises. You are certainly correct that the G-Mail subscriber consents to the service’s requirements. But, as you acknowledge, there is a separate problem about the consent of non-subscribers who send e-mail to a G-Mail customer. The problem is that Google seems to have less interest in scanning the e-mails their customer sends out than in scanning the e-mails their customer receives. And those people are not asked — and, I think, could not practically be asked — to consent to having their personal sentiments scanned for ad-friendly content.
This variation on the issue of consent has some similarities to the question of taping telephone conversations — something that, in California, requires the consent of both parties, if I remember correctly. The fact that Google thought only in terms of one party — its advertisers’ target — confirms what we learned from Google’s staff — that they hadn’t thought about those people’s rights at alll, and had no interest in exploring it.
You make a good point when considering your own concerns about how your e-mail to someone else might be treated, and how the ad would be “associated” with it. But that is exactly what is so odd about G-Mail — what other form of private and personal correspondence (telephone, letters) has anything close to this sort of potential issue? Yes, the ads are targeted at the recipient, but they are based on someone else’s thoughts, sometimes quite personal or sensitive ones. In those other forms of communication, the only way any outside party can have any access at all to the content of the conversations is to get a court order based on some sort of suspected wrongdoing. G-mail proposes a different standard — however benign it may seem right now — for e-mail.
Is this a good idea? Google has a technology that CAN scan e-mail, while the phone companies and the US Postal Service do not, and, most likely, can not. But because a technology exists is not, in itself, a reason to use it. We are accustomed to a very broad notion of privacy in those other contexts, and, up until now, have seldom had reason to question the sanctity of e-mail privacy. In fact, this is one of the barriers e-mail services had to overcome in order to get people to use it in the first place — and they did a rather good job.
Now, though, comes G-Mail. Google presents G-Mail as a very small step, but I think it is more than that — I think it begins to work a change in the very notion of communicative privacy altogether. It’s clear to me that Google doesn’t intend to collect information about people’s private correspondence, but by telling people they will now be reviewing e-mail — even using a non-human technology — the idea that e-mail is as private as a letter slowly recedes. At the very least, we should stop and think about the implications of that.
These are the reasons Senator Figueroa’s initial letter to Google said that she thought this might ultimately be a Faustian bargain. She is convinced that Google has made a very big mistake in this, and that the market will ultimately work against them. I believe that, too. But some mistakes, I think, may be too dangerous even to make — at least without more thoughtful consideration of their consequences. G-Mail seems to be one of those.
I think there is much more to this issue than your initial post might have presented. I hope all of this leads to a more productive discussion about what, exactly, is at issue here. At the very least, I hope, if you disagree with any bill we might introduce — and you very will might — that there is a more informed discussion than the current press would lead people to believe.
I much appreciate Mr. Link’s response, but I stand by my criticism. As I mentioned in an UPDATE to my original post, I don’t think a ban on gmail would really protect any legitimate right of the senders. As best I can tell from press accounts, gmail would only be connecting information about a gmail user’s e-mail with that gmail user, and using it to market to that gmail user. My messages to a gmail user are not associated with me in the gmail output — they’re just associated with the gmail user. And if the user agreed to that, I see no grounds for me as the sender to complain.
It’s true that google’s marketing to the gmail user will in some sense be based on my thoughts. But so what? I’m sharing my thoughts with my recipient. My recipient is already able to retransmit those thoughts to someone else, simply by forwarding them; and such forwarding, unlike with gmail, would actually associate my thoughts with my name in some other human’s eyes. (This illustrates, incidentally, that a third party can indeed get access to e-mail, and even to letters, without a court order — simply by getting the recipient to show the third party this material.)
With gmail, the recipient is simply having those thoughts automatically routed through the gmail advertisement generator. There’s nothing wrong with that, no invasion of any legitimate rights claim on my part. In fact, I’m much more worried that my recipients would forward some of my messages to another human than that the messages would be automatically scanned — and associated with the recipient’s identity, not mine — and used to generate ads to be shown to the recipient. (Note that Senator Figueroa’s proposal, at least as it’s described, is in no way limited to making sure that the sender’s identity is indeed protected from disclosure to others.)
So this really isn’t about protecting the sender’s identity, as the Senator’s own analogy (“We think it’s an absolute invasion of privacy. It’s like having a massive billboard in the middle of your home”) shows. Rather, it’s about preventing a form of marketing that some people think is distasteful, and that some people think might change people’s attitudes towards privacy (“the idea that e-mail is as private as a letter slowly recedes”).
I don’t think that this is something that the California Legislature should be using its coercive power to do. The government shouldn’t be banning voluntary services — services that many users might find to be quite valuable to them, and to involve no real intrusion on the rights of others — in order to prevent changes to voters’ ideas about e-mail.
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