Why Are We Surprised That We Are Being Sold? – Online Privacy Threatened-Ish

Your information is worth a pile of benjamins.  Of course it's being sold.

Your information is worth a pile of benjamins. Of course it’s being sold.

Online privacy is all about expectations, and more importantly realistic expectations.  When you are getting a service for free you should be asking how the service makes any money.  I go about my daily life wondering how various business models work and how a store with little foot traffic can afford to keep the lights on.  A little bit of skepticism about your online services may do you some good.

A federal judge in California is allowing a class action lawsuit against Google to proceed forward regarding Google’s monitoring your use of the Gmail service.  Last time I checked we all got Gmail for free.  In legal terms a contract is only valid if both sides get something.  In this instance you get free email.  What does Google get?  They get your information is what.  Why does contract law matter?  I have talked previously about the differences between US privacy law and European law and that is why it matters.  The privacy that you get when you use a service in the US is only what the provider promises to you.

A provider tells you that by using a service you have no privacy, that they will post your emails and messages on a billboard in Times Square and that they will incessantly mine your contact list for other potential users.  You still sign up for that service.  You can’t say they breached a privacy promise to you at all.  You will not have a leg to stand on.

This lawsuit has a little different color to it, though.  The suit brings in federal anti-wiretapping laws.  Interesting legal angle, but I don’t think this really changes how this will turn out.  My prediction is that there will be some quick settlement to make this go away, but I wonder what would happen if this went all the way.  Could we get the legal equivalent of “you shoulda known?”  I doubt it.

What are your expectations?

Be honest with yourself.  When you use Facebook are you really surprised that they target ads based on your posts or your friend list.  There are lots of good reasons for scanning your stuff.  We are all asking our providers to protect us better, right?  Facebook is even launching a new service to aid in suicide prevention.  That is a great thing.  They need information to do this properly – your information.

What does Google say?

Obviously they want this to be dismissed.  They argue that automated scanning lets them provide you with security and spam protection as well as determining which of your incoming email is the most important.  Great features.  In what world would you see important emails bubbling to the top and think that Google is not scanning.  I would think continued use is some type of waiver of a claim, to be honest.  If you think the email genie did this for you without any involvement by Google, please laugh now.

The judge disagreed.  She states that nothing that Google provides you suggests that the email is intercepted.  This is one of those situations where the law and reality may diverge.  Again, how do you not think that Google is intercepting and scanning your email.  However, Google’s obligations are described by the policies they provide you.  That includes the Terms of Service, their Privacy Policy and the like.  By the way, each has some provision in it that allows them to change it whenever they want and your continued use is your acceptance of it.

The fine print is very important, but I still think you need to be practical.  As a user you need to be aware of the things that you are agreeing to when you agree to them.  All those free services need to make money somehow.  That being said, the judge will not be swayed by the “you shoulda known” argument.

Perception is reality

I am wondering how much the recent PRISM-gate played into the filing of this.  Is the worry more about the downstream uses of the information contained in your emails?  The perception has become that someone can watch every email that you send through the service (duh, of course they can).  Not only that someone can, but that someone is.  The arguments for are quite powerful.  If semantic analysis of millions of user’s emails show a particular user is planning something, aren’t we all safer for it.  Perhaps, but we all need to be aware of these things as we sign up for services.  The problem is that we are not really made aware.

Notice, notice, notice

You need to be very specific when you give notice to your users.  As well as being transparent about how you will use their data.  Then stick to your promises.  Notice doesn’t mean burying something in your terms, such as in the copyright license you sign over to the provider (I think that the section in Google’s terms gives them wide latitude, actually).  Lawyers will argue that fine print and will probably win, because these service provides draft pretty good terms (as well as using some of the same language).  The problem is that users don’t read fine print.

Be up front with your users

Consider drafting plain language terms for your users.  Tell them in terms they can understand what you are planning to do.  What they will get from you and what you will get from them.

In exchange for us providing you this service, we will use the information you provide to continually improve the overall service and your personal user experience.

Something like that might work.  Just be honest with your users.  They will run from you if you lose their trust.  Don’t lose that trust by being honest and up front about what they can expect from you.  You owe it to them.

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