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.”

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.

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.

Related Resources:

  • The Attorney-Client Privilege in the Electronic and Digital Age (American Bar Association)
  • Google Explains How It Handles Police Requests For Users’ Data (NPR)
  • Cops Searching Laptops: How to Protect Attorney-Client Privilege (FindLaw’s Technologist)
  • Does Google Privacy Policy Compromise Attorney-Client Privilege? (FindLaw’s Technologist)

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