Child Porn Case Raises the Question: Is Gmail Really Private? - Technologist
Technologist - The FindLaw Legal Technology Blog

Child Porn Case Raises the Question: Is Gmail Really Private?

Most people don't like child pornography, but they do like privacy. The arrest of a 41-year-old Houston man last week created just such a conundrum after it was revealed Google found pornographic photos in Gmail attachments and alerted police, apparently all on its own.

How did the company do it? No one is quite sure, but at least one person -- Houston police Det. David Nettles -- just doesn't care. "I really don't know how they do their job," Nettles told KHOU-TV. "But I'm just glad they do it."

A lovely sentiment, Detective Nettles, but some of us -- especially lawyers worried about privileges -- really would like to know "how they do their job."

How Do They Do Their Job?

According to previous stories about how Gmail works, this may come as no surprise. In 2013, Google described in a court filing how it engages in an automatic (i.e., non-human) scanning of emails as part of their regular business -- and what's more, this is all disclosed to customers in that very long agreement that each of us reads meticulously. (Google updated Gmail's terms of service in April to make this clear.)

Ironically, this automated process could be part of the problem. An unthinking algorithm is scanning images that you send via Gmail, comparing those images to files it already knows about. The algorithm knows only what the image is, not why it's there. Conceivably, an image -- even a pornographic one -- could be sent for a lawful reason, including for use in a lawsuit, where it would be protected from disclosure by the attorney client privilege or the work product doctrine.

But that algorithm didn't go to law school. All it knows is that the bytes match, so it flags the message, and suddenly your privileged email isn't so privileged anymore. Prosecutors are already reading confidential emails sent between attorneys and clients in prison, after all.

Does your online advertising strategy keep up with the latest tech and SEO trends? Let our experts take a second look.

Time to Stock Up on Carrier Pigeons?

Google, in its court filing, insists that its actions were no different from any other third party that you surrender your mail to. Well, sort of. Except that, by law, first class postal mail can't be opened without a warrant. And we all thought that Google demanded at least a court order before it would investigate for law enforcement.

If the news stories describing this case are true, then it seems Google preemptively scanned the email and notified law enforcement on its own. This presents a problem for attorneys who use email services like Gmail as a matter of course, taking for granted that no one is listening on the other end. But even if there's a robot reading through your mail, does that vitiate the confidentiality of the communication? It would be a shame if the firm had to invest in carrier pigeons.

Related Resources: