Brad Templeton's solid analysis of Gmail, webmail privacy [priv]

[Declan McCullagh <declan () well com>]

[It seems to me that Brad is being kind here by not denouncing the 
privacy fundamentalists for trying to ban Google's Gmail in its current 
form. It is true that there are potential costs of using Gmail for email 
storage (just as there are costs of using your own laptop for that 
purpose). The question is whether consumers should have the right to 
make that choice and balance the tradeoffs, or whether it will be 
preemptively denied to them by privacy fundamentalists out to deny 
consumers that choice. --Declan]


-------- Original Message --------
Subject: Article on the privacy issues in GMail and other archived webmail
Date: Tue, 20 Apr 2004 23:02:53 -0700
From: Brad Templeton <btm () templetons com>
Organization: http://www.templetons.com/brad
To: Declan McCullagh <declan () well com>, dave () farber com
References: <4085FB7E.4050505 () well com>


You may be interested in the following fairly lengthly article I have
prepared about the privacy issues in Google's GMail.   It's my own view,
though prepared after discussions with both Google executives and
the EFF's privacy law experts.  There's been a lot of hype in both
directions on this issue, I hope it provides some balance.

The most up to date text will be found at:

    http://www.templetons.com/brad/gmail.html

Comments may be made on my blog at
    http://ideas.4brad.com

However, I provide it in ASCII form as well below.


                             The GMail Saga


Much has been written about the new Google GMail trial, which is an
e-mail service that offers a gigabyte of archiving, Google search of
your mail archives and a nice interface.  It's free, because while you
read your mail, Google ads will be displayed based on keywords found in
the mail you are reading (just as the Google Adsense program shows ads
like the ones you see on the right based on words found in this
document.)

GMail created a surprising storm for a product that hasn't yet been
released.  A coalition of privacy groups asked Google to hold back on
releasing it.  A California state senator proposed a law to ban the
advertising function.  Editorials and blog entries left and right have
condemned it and praised it.

I come to this problem from two sides.  One, I'm a fan of Google, and
have been friends with Google's management since they started the
company.  I've also consulted for Google on other matters and make
surprising revenue from their Adsense program on my web site.

I'm also a privacy advocate and Chairman of the Electronic Frontier
Foundation, well regarded as one of the top civil rights advocates in
cyberspace.  The EFF has issued some statements of privacy concern over
GMail, though we declined joining the coalition against it.  (I'm
writing this as my own essay, though with some advice from the EFF
team.)  I've also had a chance to talk at length with Google President
Larry Page about some of the issues.

Page and the others in Google were taken aback by the negative reaction
to their pre-launch.  GMail is a very nice product, with great promise.
They've done a lot of work on building a superior web e-mail interface.
Their surprise at the tempest is not inappropriate.  Many of the issues
raised here are subtle and known only to full-time privacy lawyers.  In
addition, many of the debated features in GMail are already present to
some degree in competing products like MSN Hotmail, Yahoo Mail and AOL.
And indeed, some of the reaction has been silly and a bit paranoid, and
some of that has gotten a lot of the attention.

But there are also some deep issues here, worth discussing with not
just Google but all the other webmail providers.

The thing many people reacted to the most was the idea of displaying
ads keyed to words in your mail.  We think of our mail as fairly
private, and we do a lot of private stuff in e-mail.  Google's
ad-linking is all done by computer, they promise not to have human
beings look at the mail (almost all the time).  If only a computer
"knows" your deepest secrets, is there a concern?  I certainly let my
own personal computer contain all sorts of private information, ranging
from my finances to private e-mails with my family.

Even so, people have a reaction to a 3rd party computer doing scans
like this.  If you were offered a service that saved you money by
having your paper mail opened by robots for scanning, which then
inserted new junk mail in your box based on what it found, you might
get a bit creeped out.  Go further and consider a service that gave you
free phone calls if it could have speech-recognizing computers listen
in and barge in with product offers related to your conversation?  It's
easy to imagine an unpleasant situation where you get invited to a gay
wedding in Vancouver, and find with it in your mailbox brochures for
gifts, Vancouver hotels and a free copy of Out magazine.  People have
extended that fear into the e-mail realm.

Of course, webmail is an optional service.  Those afraid of these
sceneria can simply not use it, and that's an entirely reasonable
answer.  But it ignores an aspect of the privacy fears we have.  In the
modern era where computers threaten privacy, we are as afraid of
outside computers knowing all about our lives as much as we are outside
people.  Even though we might trust the people running the computers
today, or the human health insurance clerk who learns we have cancer,
we are uncomfortable with both of those things.  We are not quite as
uncomfortable about the computer knowing, but it's hard to ignore the
fear that, in spite of the best of intentions, information on external
computers (and even our own computers) sometimes makes it out into the
world.

People's fears here are sometimes irrational, but still real.  And
irrational fears often affect privacy and freedom, even when they are
irrational.  Consider the amusing Wall Street Journal story some time
ago headlined, "Help, my Tivo thinks I'm gay!"  (The Tivo suggests
shows to you based on what you have watched before.  Tivo says that
this does not leave the box associated with your identity, though they
do collect data on all Tivo use, stripping off the identity along the
way.)  People became annoyed at or scared by their video recorders.

Google is not ignorant of this issue, of course.  They plan to work
hard to not do something so bold as sexual ads on your salacious
e-mails with your husband.  They know that even irrational freaking-out
generates a real consumer issue.

And it's not to be ignored that well-targetted advertising it itself a
useful thing.  If you take as a given that you're going to accept ads
to subsidize an activity, few wish to have their time wasted by ads
that are irrelevant.  In addition, well-aimed advertising costs
advertisers more because it is more effective -- which means you can
get the ad subsidy you are seeking with fewer ads.  Clearly many users
find themselves buying products from these ads, products they might not
have known about without them, so good ads can be a service unto
themselves.

I'll talk about the result of some of the irrational fears in a moment,
but first let's look at some of the real fears.

                   Our lives move online and outside


GMail is a big step in a concerning direction.  If it's a success,
millions of people will move a great deal of the record of their lives
not just online, but online and stored with a 3rd party.  This isn't
the first time this will happen, but for millions it will be the
biggest such jump.  Particularly if one's searches and social network
can be correlated with this information.  My e-mail contains the story
of my life, and what's not in there is often recorded in my searches.

As we move these things online and outside, we build some of the
apparatus for a surveillance society.  As usual, we don't plan to do
so, and the people building it would oppose it being used that way.  But
they build it nonetheless.  We make it so that having that surveillance
becomes a "logical" step -- changing a law or a policy, or in some
cases just pushing a button, rather than a physical step -- going into
somebody's house to grab their papers.

When our papers are at home, mass surveillance of them simply doesn't
scale.  It's too expensive.  Online, it scales well.  Our networked
computers at home are not very secure, of course -- probably less
secure than Google's against unauthorized intruders.  But they must be
broken into a million times -- though possibly by one giant virus --
and those outside machines must be compromised (by the law or by system
crackers) only once.

Webmail is, as noted, only a part of this trend.  No surprise, since
there are many technical advantages to centralization, especially when
it comes to software maintenance.  Installing, running and upgrading
software on your home computer is hard.  A remote computer is
professional maintained, and almost surely a lot faster too.  It can be
reached from anywhere.  In many cases, where you want to roam all
around and access your data, or have servers receive data for you while
your home computer is off, it's the only way to do things well.  I
won't pretend that such centralization is not quite useful, or imagine
it is something we can stop from happening.

Many have written, correctly, that we have already seen this trend in
Hotmail, AOL, Yahoo, Turbotax Online, Instant Messengers, Salesforce.com
and all other "Application Service Providers" (ASPs.)  That the trend
has already started doesn't make it less disturbing.

GMail however, with the offer of a free gigabyte, makes a big jump in
this trend.  Free Hotmail users tended to keep only a bit of their mail
online, deleting the rest.  Hotmail forced them to.  GMail (and soon
other webmail offerings) will openly encourage the opposite.

Google is a good company with honest people, headquartered in a fairly
free country with protection of rights that is among the best in the
world.  But that's not always so.  I wonder, for example, about what it
means to the people of China that we have built our instant messaging
infrastructure and some of our E-mail infrastructure entirely with
centralized servers and no encryption?  Their government can and does
routinely listen to internet traffic.  When we build our systems, how
often do we think of what it will mean when they become popular in
China, or Saudi Arabia?  Or what it means when they are sold to other
companies whose policies are not so benevolent.

There are ways to buck this trend.  Below, I'll be recommending that
Google and its competitors work to encrypt your data when they store it
for you.

                                  ECPA


The Electronic Communications Privacy Act started out in the 80s as a
blessing.  It declared that e-mail was a private means of communication,
and that we might hope for the same level of privacy in it as we have
in phone calls and letters.  Among other things, it means that police
need a wiretap warrant to read your e-mails, and that your e-mail
company's employees can't disclose your e-mails to others.

But the world has changed and the ECPA has not changed with it.  E-mail
in transit is protected, but those in law enforcement advocate that
once mail is processed and stored, it is no longer the same private
letter, but simply a database service.

GMail's big selling point is that they don't simply deliver your mail.
They store it for you, and they index it so you can search it.  (Of
particular importance, you authorize them to scan your mail for these
purposes, and that authorization is the act that risks stripping you of
your rights.)  All the other webmail companies who don't already do
this will, I'm sure, quickly have offerings to compete with GMail.  As
noted, not only do they search it, but they scan on viewing to provide
ads that match the content, making it not just a database but a
shopping service.  Should you click on those ads, the merchants will
know you were reading a page, search or e-mail related to their ads.

Unfortunately, a database and shopping service doesn't look as much
like an e-mail delivery service as it should according to the legal
definitions in the ECPA.  Thus, while Google promises not to peek into
your e-mails or hand them to others, the danger is that this is now
solely their contractual promise.  With an e-mail delivery service
covered by the ECPA, the law, not just Google's terms of service
governs when your mail can be handed over.

Google also has some work to do on their privacy policy, because it
does allow them to look at or release your e-mail in circumstances
where they would be forbidden to do so if it were ECPA protected, such
as a law enforcement "request."  But even if it bound them as tightly
as the law does, it still contains the ubiquitous clause letting them
change the policy at will, without your consent -- so it's really not a
strong restriction at all.  The policy should state at a minimum that
changes to it which would reduce the privacy of your mail can only take
place with your explicit and informed consent at the time of the
change.

A lot of privacy policies should say that, of course.  They don't,
because doing this in general is a logistic nightmare.  However, with
work, one can fine-tune such policies to dictate what can be changed
and what can't, to do at least as well as what the law requires of
e-mail delivery companies, if not better.  This is not easy, it's hard.
But it's worth doing.

When you use network services, you need a contract, and that contract
will be written primarily to protect the interests of the service
provider.  When you run software on your PC, you may agree to terms
when you install software, but as far as your own data is concerned
there is usually no question of contract at all.  The data is on your
PC, and there don't have to be rules governing what others can do with
it.

Without the ECPA protection, your e-mail (now just a database) can be
seized against Google's will with an ordinary subpoena (vastly less
involved than a wiretap warrant) or in the discovery phase of a
lawsuit.  With warrants, and in some rare cases even without them, your
mail can be grabbed without you being informed that this has been done.
Worse, Google has retained the right to hand it over in the case of a
"request" from law enforcement, rather than a court order.

Of course, these legal techniques can be applied to the data you store
yourself.  However, short of a secret warrant to break into your house
and seize your computer, it can't be done without your knowledge and
involvement.  You have the chance to fight any attempt to grab your
mail.  You have the power to get a lawyer and appeal any order in front
of a judge.  You give up some of that power when you put your e-mail
database in somebody else's hands.  Google is a good company that wants
to please its users, they don't want to be subject to all these
subpoenae.  But they won't fight as hard as you would.

It's also important to note that most of these webmail providers are
global companies, with servers around the world.  The ECPA is a U.S.
law, only protecting mail in the USA.  Some other nations have
protections but they certainly all don't.  Unless care is taken, your
mail could end up stored in another country without legal protections
you were hoping for.

Now, after scaring you like this, let me add that this is an entirely
new situation, and the courts have not yet ruled whether the ECPA
covers your mail in a searching/advertising database service.  It's
possible they might, but from the text of the law, quite possible they
would not.  Past history suggests it is highly likely the Department of
Justice will take the position that the protection is lost.

The DoJ in fact believes that the moment after you open your mail is is
just an archive and loses some protections, though at least the 9th
circuit court has disagreed with that -- up to the 180 day rule at
least.

To learn more about the ECPA and e-mail you will find a good analysis
{link http://papers.ssrn.com/sol3/papers.cfm?abstract_id=421860}{ltext
in this paper}.  It's way more complex than I describe here.

In the hoped-for event that your webmail archives are protected by the
ECPA as what it calls an ECS, they lose some of that protection after
180 days.  This is not news, but a product like GMail, which encourages
long-term archving of e-mail with the web mail provider brings the
question to the forefront.  After 180 days your e-mail archives can now
be fetched without a warrant, through a special ECPA court order or a
subpoena.  (In most cases, but not all, you will get notice of such
seizures.)

                         Expectation of Privacy


In the USA, privacy from government intrusion is defended by the Fourth
amendment, which requires a warrant be issued by a judge for many kinds
of searches and seizures.  Over the years, court precedents have
required that warrant when you have a "reasonable expectation of
privacy" over what's being searched.  The definition of when and where
you have this expectation of privacy has been in flux.  Court decisions
have sometimes sustained the expectation of privacy, but often eroded
it.

The higest standard of privacy has been "the privacy of your own home."
For example, the courts have ruled you to not have as much expectation
of privacy in a car as you do in a home.  Not as much on your open land
as inside your house.  Not as much in an RV as in a house.  Your
day-guests don't have the same privacy in your house as you do.

When technology changes privacy, there is always a battle over this
expectation.  The police want to reduce it so they can do more without
warrants.  The public wants to keep their privacy.  Recently police
made a number of arrests over the years by using infrared scanners to
look for signals coming from inside a home.  The court eventually told
them no:  That even though the IR was emitted from the house for view
by "anybody" with the right equipment, what went on inside was still
private.  Often we lose privacy, as a man who lived in his motorhome
discovered when the police were able to search it like a car because he
was parked in a parking lot rather than an RV park.

Others have learned that what they say on cordless phones, or in front
of baby monitors is not private, even though it is said inside their
homes, because it is transmitted "in the clear" outside your home.
(Cell phone calls, also often sent that way, have statutory protection
of your privacy.)

E-mail privacy is in crisis because most e-mail is sent without
encryption.  That means that almost all e-mails are like postcards.
Anybody with access to the wires (or airwaves) they travel over can
read them.  Because of this, arguments are being made that you should
have no more expectation of privacy in an e-mail than you have in a
postcard, or worse, a postcard you hand to a 3rd party to carry.  This
question will remain in the balance for some time.

GMail and its competitors may tip this balance, particularly if the
e-mail managed by the webmail companies loses its ECPA protection
status, the risk of which is described above.  I send my e-mails from
my own private machine, and that part is private.  But I send them
anywhere, including to webmail users where they are stored in a 3rd
party database for searching.  Of course, that database has
password-controlled access and I would like to hope it's private, but
there are those who will argue it's a step below the privacy
expectation one has for one's own home computer.  With a home computer,
somebody has to break into your home or the computer to read the mail.
On a 3rd party server, they can do that, but they might also see it due
to a change of policy.

Sadly, we can also expect arguments that e-mails read from a database
over an open wireless network might be akin to the cordless phone or
baby monitor situation.

One can hope such arguments will not win.  But what is true that the
more e-mail that is sent unencrypted, the more it is stored in private
but external databases, the greater the arguments will be that you no
longer really can expect that your mail is secure and private from
being seen by parties other than yourself and the recipients.  If the
courts ever become convinced this is true, e-mail could lose the
protections it currently has, designed to parallel the protections of
paper mail and phone calls.

My hope would be that Google's design should not reduce that
expectation of privacy.  But all e-mail vendors should work hard to
ensure they don't even raise the risk, let alone pitch us over the
edge.  What a terrible thing if we were to lose the cherished
expecatation of privacy we want in our letters in the name of
convenience.  The ECPA is just an ordinary law protecting e-mail
privacy, not as strong as a constitutional protection.

                           Search correlation


You've probably noticed that a lot of your web searches contain private
information.  I often type into Google things like the names of
prescription drugs I have been given, to find out more about them.  I
use search engines to research the stocks I buy and look up my friends,
or see what people are saying about my family.  Very private stuff.

Largely we treat our searching as anonymous, though in fact it's not
nearly so anonymous as we might like.  All the major search engines use
a cookie that allows the to correlate together all the searches we do.
If like me, you have broadband, your computer's numeric internet
address is also fixed -- either permanently like mine, or effectively
permanently as it is for all those who don't turn their computer off or
who have a network gateway box.

All of the companies providing e-mail and search together create a
troubling risk that the private matters in our e-mail can be combined
with the things we search for.  It's no surprise that this potential is
there.  Search companies are all eager to find ways to improve the
relevancy of their search results in order to please their users.  It's
what we want them to do.  Learning things about you is one obvious
technique to do that.

Again this is part of a trend toward creating a giant dossier of all
your private information in a central place.  Because users will demand
more accurate search, this trend won't be stopped.  However, companies
can be encouraged to anonymize data they collect, making it hard or
impossible to link back to the real person

Google has said they are not correlating search and e-mail (or their
social network prototype called Orkut.)  That's good, but for business
and user interface reasons they are not likely to say this will always
be true.  The browser cookie system allows the e-mail and search
systems to share information about your identity unless you go to
extreme lengths to delete your cookies or use cookie-washing software.
Even then, unless you are a dial-up user, your IP address is almost as
good as the cookie, perhaps better.  Of course, once you have a common
login for e-mail and enhanced search services your activities will be
fully linked, as they can be on Yahoo today.  You can only wash this
through the extreme step of using a web anonymizer which bounces your
requests among cooperating servers that hide your address.

                             Global Search


The war on terrorism has rewritten the rules on what's possible in
civil rights.  Consider the idea that the government might come with a
warrant or new law to an e-mail provider and say, "Search all your
customer's e-mail to see if anybody was talking about planes and the
World Trade Center before 8am on Sept 11."

Under traditional 4th amendment rules, such a broad fishing expedition
would be unthinkable.  But some people are finding it more thinkable.
Some might even think it's a good idea, and proclaim they don't mind if
this were done to their own mail.

Without large webmail archives, the idea wasn't even possible.  Now it
could be.

                           What can Google Do


Google is proud of its reputation as a good corporate citizen that
tries to keep its users interests at heart.  It has done this even
against the wishes of its customers (the advertisers) by putting
restrictions on ads that other sites wouldn't place.  This has actually
been a good business decision, but Google espouses a philosophy of not
doing any "evil" while building their business.  It's a good
philosophy.

        Encryption

The most obvious step Google could take would be to encrypt a user's
e-mail, searching index and other associated data, so it can only be
accessed using the user's password, and of course that password should
not be stored when an e-mail session is over.

If need be, the mail can be held temporarily unencrypted before
delivery to the user (because then it has ECPA protection) and thus
indexed and tied to ads.  Then it can be encrypted.  Both the index and
the mail contents must be encrypted so that they can't be read without
your password.  Police could get a wiretap warrant to watch you type in
your password, so this is not as private as doing fully encrypted mail
to your home PC, but as noted the warrant process defends your rights
much more than the subpoena or contractual system does.

An overseas escrow system would allow recovery of your password if you
lose it, and in the inevitable event of your death.

GMail could also encourage the use of encryption in sending mail, both
by doing SMTP-over-TLS (a standard technique for encrypting mail as it
moves from server to server) wherever possible for your incoming and
outgoing mail, and also supporting standard e-mail encryption formats
like S/MIME and PGP, as well as new opportunistic encryption systems.
This would be a giant step forward.

        Resist correlation with search

This should be resisted as long as possible.  If business needs --
which means pleasing the customer -- demand it, ways should be
developed so that it's hard to tie the correlated data back to a
particular user.  If need be, it might even be better to have an
explicit login (with password) so that the correlation data is also
encrypted and only available when the user is logged on.  Though
frankly, I use Google search hundreds of times a day -- I'm always
logged on.

Think about whether you can make such correlation opt-in, requiring the
user's agreement.  You might be able to create more accurate search
doing this, but if customers want that, is it too hard to add the step
of getting them to knowingly agree to it?

        Lobby to strengthen the ECPA

Google, Microsoft, AOL, Yahoo and others should join with us in
pointing out that the ECPA is now outdated, and not providing enough
legal protection for all the new technological innovations in e-mail
delivery.  Fight in court cases where the DoJ and others try to expand
their powers to grab user e-mail.

All these companies could also push for similar and stronger
protections in the other nations where they do business.

        Continue to refine policies and educate the public

Much of what Google is doing with GMail is innovative and worthwhile.
It would be ridiculous to see it banned, as Senator Figueroa would
suggest.  It's not a lot different in kind from all the other well
established webmail services -- but this doesn't mean those services
didn't also have issues.  There is not at this time, for example, a
reason to be afraid of GMail and not afraid of premium Yahoo mail.
Within months, the competitors will also release products with large
archives and other features to keep up with Google.

So Google needs to refine their policies and contracts.  Any policy
that can be changed to protect user privacy that does no business harm
to the company's plans should be changed.  Even ones which do impede
possible business plans should be evaluated and some of them done.

                           What users can do


The hard truth is if you are concerned about your privacy, 3rd-party
hosted web based e-mail may not be right for you.  There {link
http://www.oreillynet.com/pub/a/network/2002/10/07/udell.html}{ltext
are tools} that will let you search the e-mail on your PC.

You can also be more careful about how cookies are used to track you on
the web.  Most browsers can help you control this.  I recommend the
absolutely free {link http://www.mozilla.org}{ltext Mozilla browser}
which lets you easily turn on and off what cookies go to what sites.
Google is a good site that lets you use it without cookies; not all
sites are so kind.

The problem with privacy is that nobody cares about their privacy until
after it's been violated.  Only when Bill Gates discovered that his
e-mail could be searched for a message about cutting off "Netscape's
Air Supply" did he realize the danger in logging it.  Many people only
realize the danger in their records when they enter a lawsuit, or a
custody battle.  They all thought it would never happen to them.

If you are concerned there are a variety of resources, including tools
for anonymous web surfing, fancy cookie-management and more.

Most importantly, tell companies that you care about your privacy.
Because others, not yet finding it violated, are not giving this
message even though they do care if they think about it.

                   On the appearance of surveillance


To close, let me add one other rule about privacy.  It is not only
important to have your privacy.  It is important that you believe you
have your privacy.  If you even suspect that you are being watched, it
changes your behaviour and you become less free as an individual.

Are you the same person at your mother's house for holiday dinner as
you were your first year on your own at university?  How much you
_think_ you are being watched affects your freedom.  How much a society
thinks it is being watched affects the freedom of the society.

The fear that computerized scanning of our e-mails (to display ads or
filter out spam) will result in actual harm is largely baseless.  But
even irrational fears affect our freedom, and this should be considered
in software design.


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