The Verge and TechDirt jump on The Next Web bandwagon
That’s rubbish. Google said what it said – it’s there in black and white and they all quote it. It was said by lawyers, so of course they meant what they said. And how do you take a motion to dismiss a class action out of context?
The question is not what Google said, but why it said it. OK, here’s my layman’s take.
This is big. It’s not a court case that Google can afford to lose. If it did, it could potentially jeopardise the entire business model for Gmail. And without Gmail, where is Drive?
Google almost certainly will not lose this case. But the ‘what if…’ doesn’t bare contemplating. Google has to be absolutely certain of winning. And that’s where the invocation of the ‘third-party doctrine’ comes in. It’s the nuclear option defence.
Now the three Google apologists all say, wait a minute, Google is only talking about non-Gmail plaintiffs. So? It still cites the third-party doctrine – and show me where in the Smith v. Maryland ruling it says, “this ruling only applies to non-Gmail email users.”
But Google is being more clever than this. By invoking Smith v Maryland, Google is saying to the government, if you take me down, I’m taking you down as well. The government relies too much on this doctrine in its own surveillance practices to allow it to be overturned in a case against Google. So this statement by Google is a form of insurance to make sure it doesn’t lose the case.
What Google is saying very clearly is that users do not have a legal expectation of privacy and that it has the legal right to be a right bastard. The only bit where The Next Web, The Verge and TechDirt have got it right is that Google is not saying it is or will become a right bastard – only that legally it can.