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Google Communications The Courts

Google's Scanning of Gmail To Deliver Ads May Violate Federal Wiretap Laws 325

Posted by Soulskill
from the google's-lawyers-must-be-busy-folk dept.
New submitter SpacemanukBEJY.53u writes "In a declaration that could make Google very nervous, a U.S. federal judge on Thursday rebuffed Google's defense of its targeted ad system that scans the content of Gmail. Judge Lucy Koh — who also heard the Apple-Samsung case — found Google's terms and conditions and privacy policy isn't clear to users. Koh subsequently allowed a class-action suit to proceed against the company (official ruling). The plaintiffs in the suit allege Google violates federal and state wiretap laws by scannning the messages sent by non-Gmail and Gmail users."
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Google's Scanning of Gmail To Deliver Ads May Violate Federal Wiretap Laws

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  • by Anonymous Coward on Friday September 27, 2013 @08:55AM (#44969587)

    Will this shit die already, this is getting tiring.

    It is an automatic system.

    I bet Microsoft is funding this, AGAIN.

    • by gandhi_2 (1108023) on Friday September 27, 2013 @08:57AM (#44969597) Homepage

      By this logic, all mail virus scanners are also guilty.

      Barracuda should be worries about that.

      • by Monoman (8745) on Friday September 27, 2013 @09:04AM (#44969665) Homepage

        You beat me to it.

        So I guess the question for everyone is should Google (and others) be allowed to scan communications if they state clearly in their EULA what they are doing and why? Does the answer change when the communications include a parties that didn't accept the EULA?

        • by Anonymous Coward on Friday September 27, 2013 @09:31AM (#44969955)

          You beat me to it.

          So I guess the question for everyone is should Google (and others) be allowed to scan communications if they state clearly in their EULA what they are doing and why? Does the answer change when the communications include a parties that didn't accept the EULA?

          "Scanning" can mean very different things. GMail scans and extract the meaning of the communication (as best it can and it is getting quite good) *and* then files this in the permanent marketing profile they have on you and which they continue to build on and reuse. So they are extracting, saving, using and building a database of meaningful content from your email and about you. Other forms of scanning is without actually extracting the content itself, and not storing it in a database on you. This is clearly not exactly the same.

          You can still think this ruling against Google is silly, but we should be precise on distinctions like that.

          • Re: (Score:3, Interesting)

            by Anonymous Coward

            Yahoo has been doing this off-and-on for the past year. They will even embed ads of a competitor of the company that sent the newsletter based on key words. They finally updated their TOS in June this year but they were doing it well before then.

            Source, I'm the man that ensures billions of email messages are being delivered every month.

          • They've got the meaning of "spam" down pretty well.
          • by AJH16 (940784) <ajNO@SPAMgccafe.com> on Friday September 27, 2013 @10:34AM (#44970675) Homepage

            You have to extract meaning to perform SPAM filtering. The irony is we may prevent targeted advertising on GMail and instead get blown away by SPAM everywhere.

          • by EXTomar (78739)

            To apply "Junk Mail Filtering" requires scanning the contents. Even doing the basic things like checking DKIM and SPF to just do basic validation requires reading and extracting data from the message and storing it for metrics/heuristics is an important thing all modern email systems do now. And this ignores even the fundamentals of delivering the message.

            This is not black and white situation. Email systems need to read email messages to make the system work but they also need to read the email to do ads.

          • by Hamsterdan (815291) on Friday September 27, 2013 @10:58AM (#44970943)

            "So they are extracting, saving, using and building a database of meaningful content from your email and about you. "

            So does the NSA, yet in NSA's case it's not considered illegal

            • by alexo (9335)

              Because, while all animals are equal, some are more equal than others.

        • by newcastlejon (1483695) on Friday September 27, 2013 @09:47AM (#44970115)

          So I guess the question for everyone is should Google (and others) be allowed to scan communications if they state clearly in their EULA what they are doing and why?

          Debatable, depending on whether or not such a clause falls foul of laws on unfair contract terms.

          Does the answer change when the communications include a parties that didn't accept the EULA?

          Initially I would say yes, but on the other hand giving out your gmail address knowing that your mail will be scanned would shift the onus onto you in my opinion. In other words, if you want private contact between you and another party you shouldn't be using a service like gmail. Hell, I haven't read the gmail EULA and even I know that they effectively read my email; it's pretty much Google's business model.

          • Re: (Score:3, Informative)

            by haapi (16700)

            To amplify, with Gmail, we [non-business] consumers are not Google's customers, we Google's product.
            Perhaps Google can make this clearer what we are 'paying' Google in order to get our storage and mail services, but it was never a mystery to me.

            --
            If God forks the Universe every time you roll a die, he'd better have created a damned large process table.

          • by kqs (1038910)

            In other words, if you want private contact between you and another party you shouldn't be using a service like gmail.

            If you want private contact between you and another party, well, good luck enforcing that from your end. You can send them an actual letter, which they can keep secret or they can show to their spouse, their lawyer, or the New York Times.

            This whole thing seems to be "I want the courts to let me determine what you are allowed to do with the email I sent to you". I am amazed that anyone thinks that this is a good idea. I have a gmail.com and a .org account, both through Google, and I let Google look at my

        • by c (8461)

          I suppose Google could keep a whitelist of (non-gmail) senders for each address, and if anyone tries to send to that address without being in the list they'd send a "Click here to agree with our EULA. Otherwise your e-mail to *receiver* will be dropped."

        • by dissy (172727) on Friday September 27, 2013 @10:10AM (#44970387)

          So I guess the question for everyone is should Google (and others) be allowed to scan communications if they state clearly in their EULA what they are doing and why? Does the answer change when the communications include a parties that didn't accept the EULA?

          Here is the very first email Google sent to me when I signed up for Gmail service. Bold is added by me.

          Just due to the fact Google already does explain it clearly in their (obviously unread) EULA, as well as in their welcome email, and on more than one help/support page, I doubt explaining it yet another time would make any difference to these people.

          ----------

          Gmail Team 6/25/04 to me

          First off, welcome. And thanks for agreeing to help us test Gmail. By now you probably know the key ways in which Gmail differs from traditional webmail services. Searching instead of filing. A free gigabyte of storage. Messages displayed in context as conversations.

          So what else is new?

          Gmail has many other special features that will become apparent as you use your account. Youâ(TM)ll find answers to most of your questions in our searchable help section, which includes a Getting Started guide. You'll find information there on such topics as:

                  How to use address auto-complete
                  Setting up filters for incoming mail
                  Using advanced search options

          You may also have noticed some text ads or related links to the right of this message. They're placed there in the same way that ads are placed alongside Google search results and, through our AdSense program, on content pages across the web. The matching of ads to content in your Gmail messages is performed entirely by computers; never by people. Because the ads and links are matched to information that is of interest to you, we hope you'll find them relevant and useful.

          You're one of the very first people to use Gmail. Your input will help determine how it evolves, so we encourage you to send your feedback, suggestions and questions to us. But mostly, we hope you'll enjoy experimenting with Google's approach to email.

          Speedy Delivery,
          The Gmail Team

          • Re: (Score:3, Insightful)

            by sjames (1099)

            So if I send you an email at blah@hggdfshjd.org and it forwards to your gmail account (that I don't even know you have), where is my knowledge and consent to the scanning and storing?

            That's right, there isn't any.

            • by Noughmad (1044096) <miha.cancula@gmail.com> on Friday September 27, 2013 @10:28AM (#44970601) Homepage

              Let's say I send a letter to a friend, and he shows it to his wife. Where is my knowledge and consent? There isn't, but there should be an expectation that the recipient has the authority to show this letter to others. In GMail, the recipient has decided that he wants to show all his incoming mail to Google.

              • by sjames (1099)

                Right, but let's not pretend that all parties have consented with full knowledge. They didn't.

                • by kqs (1038910) on Friday September 27, 2013 @02:45PM (#44973601)

                  You're right. If you send me a letter, and I show it to my wife, well, you didn't consent to that. Hell, I can show it to the New York Times, and you didn't consent to that, and tough shit to you. Once you send it to me you cannot control who I show it to.

                  Please stop trying to tell me what I can do with MY email. You sent it to me, so you no longer control it. Stop trying to control me.

                  Or are you trying to say that gmail users didn't consent to Google having access to their email? Despite the text they saw when they signed up, the contents of the first letter in their inbox, and Google's greatly simplified privacy policy that was all over the news a year ago for months on end? Hell, I applied for this credit card but didn't realize I had to pay it back, pretty please mister judge fix that for me!

            • by Mitsoid (837831) on Friday September 27, 2013 @11:13AM (#44971093)

              If i send you an e-mail @hggdfshjd.org, how do i know your storage or e-mail handling policy?

              E-mail has no reasonable expectation of privacy or secrecy. If anything, it is nowadays considered standard that your e-mail will be stored for at least 30 days, or until deleted. Unless you send an e-mail to a government address, then it's longer depending on the branch/locality/etc... or if it's to someone in the financial industry.. then it's saved even if it's deleted (until requested by a probe, then it's deleted)... My point is, everyone has a different policy, and no e-mail between two people can be ensured privacy and secrecy on unencrypted messages. when going between two distant servers

              Also, when the message does arrive, regardless of service, the message will also be scanned by a junkmail filter. It will also, likely, be parsed by the recipients mail filter setting, and also by their anti-virus, anti-phising, and other anti-whatever systems. What makes Gmail's system different? If i submit a message to my ISP as junk, I'm releasing your e-mail to a 3rd party without your consent, and half a dozen machines will read it, process it, and act on it.

              If we block recipient mail systems from "automated-reading" of messages, we effectively make it illegal to filter ALL junk, spam, and phising protections.
              With the track record of poorly-worded laws we've had, I'd rather assume privacy/secrecy risks myself with encryption, than allow judges, lawyers, and elected officials choose the wording.

            • Re: (Score:3, Insightful)

              by Anonymous Coward

              Once you send an e-mail to me, that's no longer your property, it's mine now, and I consent to it being indexed. Even if I wasn't using GMail, I'd be using another mail system that indexed my e-mails so I could search them later, and there's nothing you can do about that.

              Just realize that you do not retain property rights to things you send me, and then you'll understand how stupid this suit is.

          • by dcollins (135727)

            Well, admittedly the word "scan" is nowhere in there, even the part you boldfaced.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        By this logic, all mail virus scanners are also guilty.

        Barracuda should be worries about that.

        The GMail algorithm goes "hey, this guy is talking about being dissatisfied with his job lets promote som job services in the ad space" (yeah, if you think the Google context ads are just simpel keywords think again)

        The Barracuda algorithm goes "6e 6f 72 6d 61 6c 20 63 6f 64 65... ok so far so good.. 76 69 72 75 73.. holy shit, stop that"

      • The judge mentions this in her ruling:

        ...generating user profiles or to provide targeted advertisements.

        Spam filters and mail virus scanners don't do that.

        • by Imagix (695350) on Friday September 27, 2013 @10:49AM (#44970857)
          Actually, many spam filters do. They're not just blind pattern matchers, they do have algorithms that continue to tune the filters' effectiveness, even without human intervention. They may also download other databases from their home (like Barracudacentral), but that's so that your spam filter can take advantage of the tuning that the other thousands of other spam filters are assembling as well (which might get your filter one jump ahead of a spam blast as a filter in Chicago has already seen the blast, but it hasn't reached Seattle yet...).
      • But what about the NSA scanning your email? Their general warrant from the FISA probably doesn't count as a wiretap warrant.
      • by sjames (1099)

        Not really, no. The virus scanner simply scans for a threat and if it finds it, the email goes poof or gets quarantined. The meaning of the message and any keywords are never scanned and certainly are never associated with any sort of identity.

        • by gandhi_2 (1108023)

          How do you think managed mail scanning services work?
          They continually gather data on ip addresses, email accounts, url links, attachments, body and subject verbage, and probably many more data points to build profiles.
          Barracuda can start marking things as zero-hour-intent even before it knows the attachment or url is malicious because they saw patterns in data gathered from thousands of Barracuda boxes around the world. Each device is also a sensor. And Barracuda isn't the only game in town.

      • by Shagg (99693)

        So are the mail servers themselves. It's pretty difficult to deliver the email in the first place without "scanning" at least part of it.

        • by gandhi_2 (1108023)

          Highlighting the fact that people like Judge Lucy Koh are a ridiculous throwback to old English common law, given WAY to much power to create de facto laws even when they don't know what the fuck they are talking about.

    • by MozeeToby (1163751) on Friday September 27, 2013 @09:13AM (#44969763)

      I agree with you to some extent. An algorithm searching for keywords and displaying appropriate ads? I really don't have a problem with that. Where I do have an issue is where the information gleaned goes into a big database that Google has on me. A big database that can be subpoenaed, or leaked, or stolen. A database that slowly but surely includes information from nearly every act of communication and internet usage. Even if I were to opt out of Google's services, the fact is if I send an email it's likely going to a gmail address, if I browse the internet there are likely Google servers providing parts of the page.

      • by SirGarlon (845873)

        A big database that can be subpoenaed, or leaked, or stolen.

        So it's only a problem if outsiders get access? You have a lot more faith in Google's present and future intentions than I do.

    • by AHuxley (892839)
      The NSA system is automatic too...
      http://www.consumerwatchdog.org/newsrelease/gmail-judge-holds-internet-accountable-wiretap-laws-key-consumer-victory [consumerwatchdog.org]
      Long term the US legal system seems to be returning to the "neither instrumental to the provision of email services, nor are they an incidental effect of providing these services" side.
      Another aspect is the http://arstechnica.com/tech-policy/2012/01/supreme-court-holds-warrantless-gps-tracking-unconstitutional/ [arstechnica.com]
      near the end under "Sotomayor attacks the th
    • by nurb432 (527695)

      And users agreed to it as part of the terms to get the service for free.

    • by sjames (1099)

      The NSA is an automated system too.

      Would you be OK with it if the police scanned all of your emails with an automated system?

    • The point is that i took a half hour to check the facts about the ULA terms of service , privacy policy , in other words , all the public documentation to verify if it's explicitly mentioned anywhere that they are actually scanning the content of the email .Unfortunately , i see this nowhere . I been aware of it since day 1 that my Google mail accounts were scanned for content to make their services fit me better and protect . On the service side , Google is impeccable. Not one complaint coming off of me.

  • The only conclusion I can draw from today's news is: terrorists don't read ads.
  • I for one, am looking forward to my check for $0.23 as restitution for these atrocities. I still have a check for a dollar something on my fridge from the last class action I was apparently a part in. I think I'm just going to start collecting them.
  • by maroberts (15852) on Friday September 27, 2013 @09:02AM (#44969649) Homepage Journal

    ...she was(is?) the ringmaster for the Apple Samsung patent battle.

    Personally if I wanted a decent tech judgement I'd move heaven and earth to end up before Judge Alsup (Oracle v Android)

    • by frinsore (153020)

      There are some pretty interesting points raised in the case that I think should be addressed. I'm on google's side, the service that google provides me is worth their database about my habits. That's my choice and I knew it going in, even Microsoft advertises that Google does this. But privacy policies, EULAs and such have become stupidly complex. An average user can't be expected to read those tedious documents and I doubt if more then 1% fully read any of the contracts they click to accept. FTFA: "th

  • Amazon Does this too (Score:5, Interesting)

    by gishzida (591028) <gishzidaNO@SPAMgmail.com> on Friday September 27, 2013 @09:15AM (#44969787) Journal

    Google isn't the only one that reads your mail.

    If you have a Kindle Fire or Fire HD they are reading it too. I had the upsetting experience of reading an email on my Kindle Fire HD that announced my father's death and then not more than a few hours later was served a "recommendation" on my Kindle a book on how to write a Eulogy.

    I deleted my email account information from the kindle and shut down the recommendation system on the device... and I told Amazon how creepy they were... At least Google hasn't served creepy ads like that... so far...

    Maybe Amazon should learn from Google and adopt "Don't Be Creepy" as their motto. Are you listening, Mr. Bezos?

    [By the way I tried at the time to put Amazon's actions up as a news story on Slashdot... but it was not picked up as a story...]

    • by Internal Modem (1281796) on Friday September 27, 2013 @09:19AM (#44969837)
      You weren't published by Slashdot because you didn't have a blog that quoted another blog that linked to the original blog which had a link to a news aggregation site pointing to the original story.
    • by CastrTroy (595695)
      Would it have been any less creepy if that was done without sending your data out to the cloud? What if your computer had real artificial intelligence, and could determine the meaning of your email, and do things for you based on what's actually going on in your life. Would it be creepy if it offered a book at that might help out in a certain situation, maybe with a list of places where you could buy it. I the computer could do all this without sending your personal correspondence out to the cloud, and in
  • I wish (Score:4, Insightful)

    by no-body (127863) on Friday September 27, 2013 @09:18AM (#44969821)
    The same scrutiny would get applied to NSA's escapades but they get a free ride on everything.
    • by synapse7 (1075571)
      I figured the acceptance of the NSA scanning mail would be applied to google, and others.
  • by satch89450 (186046) on Friday September 27, 2013 @09:36AM (#44970007) Homepage
    "But people who send e-mail imply consent..."

    I'm a long-time Google Apps user, and my company's domain is on all mail receipents' mail, not "gmail.com". So how can you have implied consent when the sender doesn't know that the mail is being sent through Google?

    • I'm a long-time Google Apps user, and my company's domain is on all mail receipents' mail, not "gmail.com". So how can you have implied consent when the sender doesn't know that the mail is being sent through Google?

      In this case, the user of Google Apps has volunteered to submit all mail that he's received from all of his correspondents for scanning by Google. That's part of the bargain for Google's rock-bottom pricing. I would think that third-party disclosure parameters would apply to the recipient doma

    • So how can you have implied consent when the sender doesn't know that the mail is being sent through Google?

      Indeed!

      I'm thinking a Thunderbird add-on might be useful, which would scan the MX records of your would-be recipients and alert if any of them pointed to Gmail...

  • by sirwired (27582) on Friday September 27, 2013 @09:47AM (#44970123)

    Google has been 100% up-front, since the day they announced the product, that they were going to pay for GMail by scanning your mail messages and guessing at relevant ads. They have made utterly no effort whatsoever to hide or obfuscate this fact.

    • You get a prize. I'm astonished no one else pointed this out yet.

      I've been a GMail user since the beta, and it was obvious then. It was even made obvious in the press releases.

      Moreover, the real WTF here is that people use email with any expectation of privacy at all. The "envelope" icon used by most email programs is a giant lie.

      If the postal service is mail in envelopes delivered by mostly trustworthy postmen, then email is postcards delivered by random junkies, some of whom are NSA agents and other simil

      • by Bucc5062 (856482)

        What you state has merit, but what stops a postman from opening a letter, reading it, and perhaps acting upon the contents. Sure the envelope provides a modicum of protect from casual reading, but it does not take much for a person to use a letter opener on someone else's mail. What stops them (for the most part) is that mail is protected under the Constition, under the law and as such can bring legal trouble to said letter opener.

        As a computer or tech person, you may see an email as "open" like a postcar

      • by whoever57 (658626)

        It's an open protocol. You send mail to the server, as plaintext, and it's then forwarded through a bunch of other servers, as plaintext, until it gets to it's recipient. This has always been the case. The only thing that's changed in modern times is the chain of servers has gotten a little shorter in most cases.

        This is not true any more. You never heard of SMTP-TLS, SMTP with ssl, IMAPS, POP3S, etc? All the relevant protocols support encryption these days and encryption is in routine use. Yes, the server

  • Right cos those were soooooo effective at stopping anyone like the NSA tapping every wire ever. Or is this one of these things where it's ok if a government organisation does it, like how the US army can't commit terrorism because they are the "good guys"?
  • by NoNeeeed (157503) <slash@NOspAM.paulleader.co.uk> on Friday September 27, 2013 @10:04AM (#44970301) Homepage

    If the court decides that mail providers cannot, on principle, be allowed to scan the content of a mail message then I don't see why it wouldn't affect content based spam filtering.

    This case could have interesting ramifications for all mail providers if the court decides this violates wire-tap laws.

    • by Tom (822)

      The law and the courts are smarter than most /. geeks. They understand the concepts of "intent" and "purpose".

  • No, no it doesn't. (Score:4, Insightful)

    by bmo (77928) on Friday September 27, 2013 @10:10AM (#44970383)

    >The plaintiffs in the suit allege Google violates federal and state wiretap laws by scannning the messages sent by non-Gmail and Gmail users."

    The ECPA says that email is different and that only watching the live transmission outside the normal checking of function of the email system by a person when not otherwise disclaimed by the privacy policy is the equivalent of a wiretap.

    That's because email is a store and forward communication, not the equivalent of a phone call.

    When the ECPA was written, it had to be written in a way that prevented turning all operators into felons when they weren't deliberately spying on their users. This is the "hole" (it's not really) that Google is using to justify the machine reading of email, if it's spelled out.

    I have read the Gmail privacy statement. To me it covers their ass in this regard. The Gmail privacy statement applies just as much to incoming mail as it does to outgoing. But even if it doesn't, when you send email, unless it's encrypted, it's the equivalent of a postcard. Are we going to be throwing meatspace postal workers into jail when they read the text next to the address on a postcard? That would be insane and unrealistic expectation of privacy, wouldn't it? That's not just my opinion, it's the opinion of everyone who knows anything about email. It's not a new concept, either. It's been expressed in books like my copy of the first edition of "Navigating The Internet" where the author introduced this "new thing" called the "web."

    Calling this wiretapping and removing the safe-harbor sets a dangerous precedent and will turn all operators into felons.

    While there is the desire to have complete privacy when it comes to email, unencrypted transmission and text negate any realistic expectation of privacy. Privacy starts with the user and ends with the user. If you don't want people reading your stuff (besides the fuckin' NSA spit), take measures to keep them from reading it. Instead of sending plain text on the postcard, encrypt the text with your (figurative) Ovaltine Decoder Ring and get your friends to use their decoder rings.

    http://www.youtube.com/watch?v=zdA__2tKoIU [youtube.com]

    There is a crying need for transparent encryption methods in communication software, and it boggles my mind that this hasn't happened yet.

    --
    BMO - Drink more Ovaltine.

    • by Bucc5062 (856482)

      I commented on this in another post, but the postcard analogy does not completely work here. When I mail a postcard it is true that the postal worker (assuming a human at this point0 can easily read my postcard because the only "equipment" needed to do so is his/her eyes. From hand to hand, it is the eyes that interpret the words and thus make it public. Per your comments I could send postcards with encrypted text which would stop the casual reader, but not one dedicated to seeing my communication.

      So I'm

    • by garutnivore (970623) on Friday September 27, 2013 @12:31PM (#44972141)

      Are we going to be throwing meatspace postal workers into jail when they read the text next to the address on a postcard? That would be insane and unrealistic expectation of privacy, wouldn't it?

      The comparison is not apposite. What Google does is akin to postal workers scanning postcards and storing them in a database which is used to profile people so as to push services on them. You can be certain that if postal workers did this, then there would be an outcry.

      That's not just my opinion, it's the opinion of everyone who knows anything about email.

      I've been an email postmaster since the early 90s. Your opinion is not by any means representative of "the opinion of everyone who knows anything about email." The issue is not storing the emails but the damn data mining that Google performs on them. I've never data-mined the emails stored on my server, nor have the postmasters that I've had the pleasure to work with. As a matter of fact, we take measures to avoid accidentally looking at people's emails. That they are not encrypted does not make it okay to snoop. It's called having a sense of ethics.

      And we (me and the postmasters I've worked with) all think what Google is doing is shit.

    • by alexo (9335)

      Are we going to be throwing meatspace postal workers into jail when they read the text next to the address on a postcard?

      If a group of postal workers read every single postcard you sent or received via that service, saved all the text in a database, indexed and cross-indexed it by keywords, dates, senders and recipients, addresses and names... Than, yes, I'd expect their asses to be thrown in jail for a long time.

    • by Tom (822)

      Are we going to be throwing meatspace postal workers into jail when they read the text next to the address on a postcard?

      legal fail.

      The law, contrary to most geeks, understands the difference between random events and systematic, intentional, for-profit activities. And frankly, if you don't understand the difference between a postal worker who looks at a postcard every now and then, and some automated system that scans every postcard going through the entire postal system, then I'm not sure I can explain it to you, because I'd probably have to start by explaining the meaning of "the".

      The second important point is that the pri

  • ...turn it into ascii chars to send over https to your browser? Then, all email providers are guilty.

  • If Google restricted their scanning to just emails that have been sent from the acocunt then they would be scanning only emails thast the user has given their consent to have scanned.
  • by DoofusOfDeath (636671) on Friday September 27, 2013 @12:40PM (#44972231)

    What's the relationship between (a) wiretap laws, and (b) the reasonable expectation of privacy?

    Because if the NSA didn't need a court order to obtain my emails from Google, do the same factors imply Google had a right to scan those same emails?

    Or are different legal issues at play in those two cases?

He keeps differentiating, flying off on a tangent.

Working...