While we should all keep in mind that our email is not necessarily our email anymore when on a free service like Gmail, Americans still have an expectation that due process must be followed when the government demands a peek into our private communications. In a move that politely explains, “Yeah…. no.”, Google has continued to defy a court order demanding that they turn over data from 22 email accounts to the Justice Department, prompting a bit of a poutstorm demanding that sanctions be assessed against the company, according to a Saturday article in Ars Technica. Google continues to contend that pending appeal, they are following precedent in not turning over data, which like a picture of the 44.4th President in a bathrobe, cannot be unseen once revealed.
There are much larger implications here, as the Supreme Court must ultimately resolve the question of whether Google, Microsoft, or any other company which hosts Americans’ emails are bound to turn them over when stored on foreign servers, especially when such an order violates the laws of the country in which they are held. A decision in the government’s favor could further erode privacy protections and eventually reduce the concept of private communications to a whisper in an ear, as electronic media are almost all stored and transmitted on media not owned by the consumer.
Additionally, the laws are a little mushy on who owns your email. Google says in its terms of service that you own your data as intellectual property, but in storing it on their servers, they maintain rights to it. Even if you delete it. So shouldn’t the Justice Department be holding the writer or receiver of the emails in contempt? After all, it’s a lot easier to threaten a person with jail time for noncompliance than to levy a fine against a multi-bazillion dollar company, who might just tell you to bugger off.
Google further states on its dedicated privacy site,
[W]e store and protect what you create using our services. This can include:
- Emails you send and receive on Gmail
However more explicitly from their Privacy policy, that protection is still limited and it may be turned over without your separate explicit consent, as your acceptance of the Terms of Service (you did read it all when you clicked ACCEPT, didn’t you?) pretty much gave up your right to be asked or informed:
Information we share
We do not share personal information with companies, organizations and individuals outside of Google unless one of the following circumstances applies:
[...]
We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:
IF you aren’t comfortable with that use of your data as a Google email customer, you can always download it, delete from their servers, and keep it locally, but you do not have the ability to remove it from their backups. So essentially, once it is out there on the internet, it’s really out of your hands forever. So the common sense (or Weiner) rule applies: if you wouldn’t be OK with it on the front page of the New York Times, or wouldn’t want your mom to see it, don’t post it electronically. (#44.4 does have a point there, so we agree on at least one thing.)
The same applies to the other email providers as well, even though this particular case involves Google.
Big Brother is really already here and has been for a while.
But we digress, back to the case….
The Justice Department is claiming foul, despite following the same process in similar cases with Microsoft. As Justice wrote in their legal filing,
"Google's conduct here amounts to a willful and contemptuous disregard of various court orders...
Wow, who does Google think they are, anyway, a rogue sheriff in Arizona? Further pleading from Justice elaborates, stating
Google is entitled to have its own view of the law and to press that view before a court of competent jurisdiction. However, when faced with a valid court order, Google, like any other person or entity, must either comply with such an order or face consequences severe enough to deter willful noncompliance. The issue before this court is what sanction is sufficient to achieve that goal.
Wow, almost like corporations are people, and should have some basic rights. (How’s that working out for you, Justice?)
Pressing its case:
The government noted that "the customary sanction for an individual's refusal to comply with court-ordered disclosure is immediate imprisonment." But the authorities are not pressing for that because "a corporate entity obviously cannot be imprisoned for its refusal to comply with a court order, the usual contempt sanction imposed against corporate entities is a fine."
Google, not to be bullied, asked to pay a fine and get to the whipping shed without delay, in an effort to resolve the legal questions:
"Google therefore does not intend to comply with the August 14 Order while seeking appellate review," the company wrote Judge Seeborg. Google was asking the court to be held in civil contempt in a bid to speed up the appellate process of its case. Such a move, which on its face seems counterintuitive, has been done before.
The government further complained, that
Even more alarming is the fact that Google went out of its way, spending thousands of man-hours and forgoing other engineering projects, all so that it would be positioned to refuse to disclose any of its foreign-stored data—or, more precisely, any data it could not confirm was held in the United States—without seeking judicial relief or guidance and without limiting its new tooling to be used for warrants issued out of the Second Circuit.
I think the government has a point. The next thing you know, we’ll have banks setting up in foreign countries like the Cayman Islands, Cypress, and Switzerland, so as to avoid the reach of the US government. Oh wait, I guess that would be a rather ironic complaint from an administration whose Commander in Chief, advisors and cabinet members routinely store their money in such places to avoid just such scrutiny.
I’m guessing those emails being subpoenaed weren’t sent from Paul Manafort to certain unnamed presidential candidates, or else the pressure would be much lower. But wouldn’t that be a moral quandary, deciding what was more important, personal privacy for all of us, or potentially uncovering a smoking gun that would finally and undeniably confirm that our democracy was willfully hijacked and sold off for profit?
In any case (pun intended), this was a quiet development, but could have huge implications for us all as it goes to the Supreme Court, or as Google may knuckle under pressure. Stay tuned.
Reminds of the apocryphal ‘Chinese Curse,’ “May you live in interesting times.”1 Interesting times, indeed.
1) While this is a common attribution to the Chinese, its origin has been disputed, and most likely is a transmogrification of a statement by Neville Chamberlain’s father Joseph in an 1898 speech:
“I think that you will all agree that we are living in most interesting times. (Hear, hear.) I never remember myself a time in which our history was so full, in which day by day brought us new objects of interest, and, let me say also, new objects for anxiety. (Hear, hear.) [emphasis added]”
Sunday, Sep 24, 2017 · 6:52:59 PM +00:00 · LogORhetoric
After revisiting the original article, title changed to reflect that data related to accounts, not just email, was what Justice requested be turned over. (h/t to @Things Come Undone for the comments that helped to clarify this.)
This is more than semantics, since a Google account tied to a user contains data on visits to sites (Google Ad Network and Chrome history), web searches, Google Voice calls, physical location, social connections, things you have purchased, email, places you’ve gone (if you use Google maps on your phone), things you’ve purchased (through their ad-tracking software on other sites), people you’ve called (if you use Hangouts or Googe Voice), all of it is wrapped up in one nice package. McCarthy would have loved a file on every one of us, like Google has.
We can see why Google would resist turning over this data, especially if the government isn’t revealing that it’s a case of national security or anything that would elicit voluntary compliance. This is a much bigger demand than I or many may have realized.