How Is Consumer Watchdog 'Helping' When It's Trying To Destroy Services Consumers Find Useful

from the get-away-from-my-email dept

Tue, Oct 8th 2013 9:01am — Mike Masnick

A few weeks ago, we wrote about a troubling ruling by Judge Lucy Koh, in which she accepted the argument pushed by a group called Consumer Watchdog (which is basically an anti-Google organization focused on misrepresenting Google at every opportunity) that Google's Gmail conducted some sort of illegal wiretap when its computers scanned incoming emails to put relevant ads next to it. As we noted, if having a computer scan your email is illegal wiretapping, then pretty much any anti-spam software is also an illegal wiretap. The whole concept is really ridiculous. If you send me a mail, you are granting permission for me to view that mail however I wish to view it -- and if that includes reading it via Gmail and having its automated computers put ads next to it, then that's the price you pay.

Unfortunately, with Judge Koh unwilling to recognize this basic concept, it's now open season on email providers. A very similar lawsuit has now been filed against Yahoo, and I'm sure it won't be the last one.

The whole situation is screwed up beyond belief. Eric Goldman's comments on the original lawsuit against Google are completely on point here. Not only does this ruling show how totally screwed up ECPA (the Electronic Communications Privacy Act) is, but the whole thing may lead to making just about everyone a hell of a lot worse off. Goldman notes why Judge Koh's ruling is almost certainly incorrect under the law: algorithmic processing of content isn't considered interception under the law; the ruling could certainly apply to anti-spam/anti-virus/spell-checking services and more; email providers have been doing this for ages, so where's the statute of limitations; and what actual harm was caused to people who had their email scanned?

But he concludes it with this plea for sanity to the likes of Consumer Watchdog:

PLEASE PLEASE PLEASE don't take away my Gmail account. It has materially improved my life, and I hope and pray that I'm not downgraded into some second-rate email account due to this litigation.

Indeed. It leaves me wondering what "consumers" Consumer Watchdog is looking out for, because it's not me, and it doesn't appear to be the many many millions of people who use a variety of different webmail services quite happily -- because it improves their lives. I don't want a group (especially one prone to blatantly misrepresenting reality) to break email for me. That's not being a watchdog, it's being an authoritarian dipshit, arguing that millions of people around the world should be worse off because this one group thinks it knows best.

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Filed Under: email, gmail, privacy, wiretapping
Companies: consumer watchdog, google, yahoo

45 Comments

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Anonymous Coward, 8 Oct 2013 @ 9:10am

the most important thing coming out of this trial, yet again, is having judges rule on cases involving something, whether a service, a technology or anything else, that they KNOW ABSOLUTELY FUCK ALL ABOUT OR DO NOT UNDERSTAND!! when the cases first come up, why not mark them to be judged and ruled on by judges that are competent in the field they are ruling on? if their knowledge is such that they cannot do so, then train them up! if they dont want to be trained, give the case to someone who knows what the hell they're talking about!!!
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TKnarr (profile), 8 Oct 2013 @ 9:24am

Parallel with a secretary
On appeal I suspect it will be pointed out that, unlike cases where the ECPA applies, in this case Google isn't a third party intercepting the e-mail but is acting at the request of, and under a contract with, the recipient to handle their e-mail. The parallel would be a secretary reading and sorting your mail, possibly handling some of it herself, collecting some of it and summarizing related items so you don't have to read all of them individually, and handing you the stuff you really need to handle with notes attached to help you. The secretary, like Google, isn't a third party, she's your agent, and the ECPA doesn't say you can't have an agent handle your e-mail for you.
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Anonymous Coward, 8 Oct 2013 @ 9:25am

This could turn out even worse
I'm going to gloss over an important point here: content scanning of email for anti-spam purposes is a nice theoretical idea, but a terrible one in practice. (Source: more anti-spam experience than anyone else.) So let's presume that email providers switched that off, and ran their email systems like I do: using only metadata.

THAT could be a problem too, if this kind of litigation reaches far enough. Metadata is actually the most valuable information when trying to defend against SMTP abuse, as much of it is hard to fake, it's relatively small, much of it can be cross-checked independently, and it's the foundation for scalable defense. (The last meaning that systems utilizing it perform well under heavy load AND that it extends well across large operations.)

And the thing is: mail doesn't work without metadata. We HAVE to look at who it's addressed to, for example. We SHOULD look at the hop count, for example, to make sure it's not looping. And so on.

Bottom line: everyone involved in this legal debacle needs to be put through a three-day class on how email actually works, including a primer on SMTP and DNS. Without it, none of their claims and none of their rulings are going to be grounded in reality.
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out_of_the_blue, 8 Oct 2013 @ 9:31am

No, Mike, SPYING and targeting ads is NOT same as anti-spam.
It's just not. That's coming from outside sources.

What Google does is snoop on your sent and read mail. Even the gov't needs a "mail cover" (or whatever the term is) to do that with physical mail.

Google has no explicit permission to do that: it's just that people are tricked into accepting phony conditions and can't prevent it, either.

As always, you defend mega-corporation Google -- when it's big enough to defend itself. What's your interest in doing so?

The phony deal that evil people (and gullible fools) try to force on us: You can't have the benefits of technology unless give up all privacy.
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Anonymous Coward, 8 Oct 2013 @ 9:33am

I'd like to point out that Gmail can continue to exist without Google scanning your email to place ads next to it.

They won't make quite as much money off of it, but they can still show you ads based on your browsing history and whatever other information they have about you.
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Anonymous Coward, 8 Oct 2013 @ 9:49am

I'd like to point out that Gmail can continue to exist without Google scanning your email to place ads next to it.

Indeed, but even if they continue to do so, it is still with the consent of the account holder, and therefore not an intercept.
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Trails (profile), 8 Oct 2013 @ 9:52am

Re: No, Mike, SPYING and targeting ads is NOT same as anti-spam.
What Google does is snoop on your sent and read mail.

No, they index it. It's an automated process. http://en.wikipedia.org/wiki/Full-text_index

Google has no explicit permission to do that
They do from me. I went into gmail with the understanding that this is how it works.

it's just that people are tricked into accepting phony conditions

Supporting documentation? How are people tricked? I wasn't and I'm surprised anyone would say that unless there's an ulterior motive.
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Me, 8 Oct 2013 @ 9:53am

There is a difference between scanning content to USE that content for a 3rd party's benefit (with whom the sender is not in privity under any TOS or contract whatsoever) and scanning content for materials OUTSIDE the scope of that content (e.g., spam/malware) for the benefit of both the SENDER and USER.

Email addresses are not contracts, and you don't get to bypass the law just because one party has a 3rd party relationship with someone else altogether.

I'm with the judge on this one.
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John Fenderson (profile), 8 Oct 2013 @ 9:57am

Re: No, Mike, SPYING and targeting ads is NOT same as anti-spam.
Google has no explicit permission to do that

Of course it does. It has explicit permission from the person who signed up for the account. Even arguments that it's buried in the ToS don't hold water in this case, as everyone knows how gmail works -- and those that don't find out really quickly when they start using it.
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Trails (profile), 8 Oct 2013 @ 9:59am

Re: No, Mike, SPYING and targeting ads is NOT same as anti-spam.
As always, you defend mega-corporation Google -- when it's big enough to defend itself. What's your interest in doing so?

Well, this is your most salient point. Let's not discuss this because google is big.
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John Fenderson (profile), 8 Oct 2013 @ 10:01am

Re:
(with whom the sender is not in privity under any TOS or contract whatsoever)

Irrelevant, as no third party (aside from Google) is looking at your emails or being informed about what they contain.

Email addresses are not contracts

True, but you do agree to a contract when you sign up for the email service. No law is being bypassed.

The judge is not just wrong, but laughably wrong. And I say this as someone who dislikes Google's snooping so much that I don't use Google services, and avoid sending emails to people with gmail accounts.
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out_of_the_blue, 8 Oct 2013 @ 10:01am

Oh, noes! IT'S THE END OF EMAIL!
Just read through, and it's a HOOT! You're actually claiming that email can't exist without invasive SPYING by mega-corporations!

And you have the chutzpah to call this judge and Consumer Watchdog "ridiculous"! (And your usual long string of pejoratives that you substitute for argument.)

I don't want a mega-corporation (especially one prone to blatantly misrepresenting reality) to ENFORCE SPYING on me.

You even worked in "what actual harm"! -- Privacy is invaded, that's the harm, and there's NO stopping further unless it's stopped at some point. So the right rhetorical question is: At what, if any, point would Mike Masnick say that mega-corporations spying on us (and handing over all information to gov't for a small fee) is too much? -- And then how would we roll it back to reasonable? You can't start boulders rolling down toward a sleeping village and before they hit say: "See? What actual harm?"

Mike is SO repetitious that I have taglines:

Where Mike's "no evidence of real harm" means he wants to let secretive mega-corporations continue to grow.

Mike Masnick on Techdirt: "its typical approach to these things: take something totally out of context, put some hysterical and inaccurate phrasing around it, dump an attention-grabbing headline on it and send it off to the press."
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Anonymous Coward, 8 Oct 2013 @ 10:01am

I'd also like to point out that the scanning that Google is doing is primarily for search purposes. All they are doing is generating a keyword index. They are _not_ spying as OOTB would have you believe. Of course as a tradeoff to having a searchable email database is that you give Google the right to use the keywords in the index (and any metadata) to help them target advertising.

The bigger problem isn't that Google has such indexes of the keywords from your email, it's that the NSA does too.

These groups like 'FairSearch' and 'Consumer Watchdog' are nothing but shell organizations for Microsoft and other anti-google / anti-open source / petulant competitors who can't figure out how to compete fairly. These kinds of moves completely have the hallmarks of legal teams from Microsoft, Oracle and Apple.
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Zakida Paul (profile), 8 Oct 2013 @ 10:03am

Don't you know?
Us mere plebs have no idea what is good for us or even what we want. It is up to our government and corporate overlords to decide that. All hail our masters!
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Machin Shin (profile), 8 Oct 2013 @ 10:24am

(Source: more anti-spam experience than anyone else.)?
Your "source" is that your so arrogant your head has a hard time fitting through doorways?
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John Fenderson (profile), 8 Oct 2013 @ 10:33am

Re: Oh, noes! IT'S THE END OF EMAIL!
I don't want a mega-corporation (especially one prone to blatantly misrepresenting reality) to ENFORCE SPYING on me

Me neither, which is why I don't use Google's stuff. Join me. Problem solved.
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Anonymous Coward, 8 Oct 2013 @ 10:34am

Re: (Source: more anti-spam experience than anyone else.)?
Past postings here explaining contemporary best practices in anti-spam methods have been met with skepticism. I decided to attempt to blunt that by pointing out that I've been working in this field longer than everyone else -- and thus have substantial clue, certainly FAR more than the mere novices at Gmail.

You can either fixate on my arrogance, which is substantial and well-justified given my vast expertise, or you can focus on the substance of my remarks, which are relevant to the discussion at hand.
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John Fenderson (profile), 8 Oct 2013 @ 10:36am

Re:
All they are doing is generating a keyword index. They are _not_ spying as OOTB would have you believe.

In fairness, I call that spying. But in extra fairness, that's apparently a subjective terms and reasonable people can disagree about when the "spying" line has been crossed.

These groups like 'FairSearch' and 'Consumer Watchdog' are nothing but shell organizations

100% correct. Unlike Google, these groups are pure scum.
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Machin Shin (profile), 8 Oct 2013 @ 10:42am

Re: Oh, noes! IT'S THE END OF EMAIL!
I don't really see anyone saying that to stop this would be the end of e-mail. What they are saying though is that if Google can't make money off advertising then they will try to improve their bottom line some other way. So in other words, they will either cut back on their services to save money, or maybe try charging. Google is a business, not a charity, they are going to do what it takes to make money.

As for the "oh no! Google is SPYING!" Well.... with the NSA tapping the back bone of the internet all standard e-mail is getting looked at anyways. Unless you are using something like PGP for your e-mails then they are getting scanned by any number of people as they travel the net.

That is not me saying I like the spying and that I like what Google is doing. No this is me pointing out that the problem is MUCH bigger than just Google.

On a side note, I really do find myself wondering what in the world you do for your computing. With all these posts about hating Google and Microsoft it makes me wonder how you even managed getting online and finding this place.
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Anonymous Coward, 8 Oct 2013 @ 10:42am

Re:
You send an email to me. You grant me permission to read it, copy it, store it, use it, etc. I grant permission to Google to scan my copy.

This isn't difficult.
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Anonymous Coward, 8 Oct 2013 @ 10:44am

Re:
I'd like to point out that Gmail can continue to exist without Google scanning your email to place ads next to it.

Doesn't matter. Mike is paid by the greedy robber barons over at Google to say copyright is bad and spying is ok for google but not the NSA.

He's the laughingstock of the web.
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Anonymous Coward, 8 Oct 2013 @ 10:47am

Re:
After the Apple v. Samsung trials, it appears Judge Koh is very pro-Apple and anti-Google. So I expect her to rule against Google at every turn. It's just another example of partisan judges destroying the American justice system.
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TasMot (profile), 8 Oct 2013 @ 10:58am

There ain't no free lunch still holds true
Google via gmail provides an email service with no out of pocket payment. They trade off the payment of cash for the right to place ads on the viewed email. It's in the Terms of Service that were agreed to when the account was opened. That is the contract for using gmail. If someone doesn't like that contract, then why are they still using the service. Whoever is holding a gun to their head, please stop. If those idiots at the "Consumer Watchdog" group get their way, all of the free to use ad supported email providers are going to go away. The cost of building and running an email service the size of Yahoo or gmail is enormous. If this anti-consumer "Consumer Watchdog" group thinks that what gmail is doing is so wrong, why don't they offer their own free email service with no advertising?
If someone doesn't want to have Google place ads on their email, then they should stop using gmail. Or, heaven forbid, put up their own email service like I did. Look ma, no ads.
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Gwiz (profile), 8 Oct 2013 @ 11:04am

Re: Re:
He's the laughingstock of the web.

First they ignore you, then they laugh at you, then they fight you, then you win.

-Mahatma Gandhi

Based on your comment, Mike has already reached the second stage. Looks like he's doing it right to me.
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Zakida Paul (profile), 8 Oct 2013 @ 11:07am

Re: There ain't no free lunch still holds true
I ditched Gmail for MyKolab and I haven't looked back. An ad free service that allows me to set up email on my tablet and takes privacy seriously is worth paying for.
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Trails (profile), 8 Oct 2013 @ 11:27am

Re: (Source: more anti-spam experience than anyone else.)?
Ad hom, tsk tsk.
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Trails (profile), 8 Oct 2013 @ 11:32am

Re: Re: There ain't no free lunch still holds true
Absolutely, and more power to you, but doesn't undercut the fact that Gmail did all of this with full informed consent.
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John Fenderson (profile), 8 Oct 2013 @ 11:37am

Re: Re: (Source: more anti-spam experience than anyone else.)?
Arrogance is never justified. When backed up by actual skills, it is tolerable at best.

But what you said about spam filtering is accurate.
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Crusty the Ex-Clown, 8 Oct 2013 @ 12:46pm

If they REALLY want to help me with my privacy.....
......maybe they should direct their efforts toward reining in the NSA. I know I''m nothing but a old broken-down clown, but the NSA worries me one hell of a lot more than Google does. And even with senior moments, I do recall accepting Google's terms and conditions of service when opening the account. Are the good folks at CW more forgetful than an old geezer like me? Maybe they should just stay off the InterTubes.

Come to think of it, I can't recall ever accepting NSA's TOS, nor their instructions for unsubscribing - must be getting old.
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aldestrawk (profile), 8 Oct 2013 @ 1:01pm

Re: Parallel with a secretary
Your analogy is good insofar as it relates to scanning for which the results are under your control. This works for indexing, spam and anti-virus filtering and such. The distinction between whether the user has control of a scans stored results is one the ECPA doesn't take into account and should. When email is scanned for the purposes of targeted advertising you do not have control over the results. Also, it is third parties, the advertisers paying Google for this keyword information and ad placement, who are ultimately using it.
The owner of an account should consent to scans before they are allowed. Whether or not the scanning is optional is not the main point. What is most important is the scanning should be explained to the user so that consent is informed. An important part of the suit is whether Google has properly informed users. They have not informed users in a clear way. This is particularly important if any results of a scan are stored in a way that is outside of user control. A further distinction should be made between statistical scans (e.g. for disease symptoms) for which the results do not identify any particular user and scans for which stored traces are tied to a user (e.g. targeted advertising, copyright infringement, objectionable content).
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Anonymous Coward, 8 Oct 2013 @ 1:30pm

Re: Re:
Nah, Consumer Watchdog has been around since before the Internet.

They've simply outed Google for being the evil company that it is and that makes poor Mike Masnick mad.
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aldestrawk (profile), 8 Oct 2013 @ 1:39pm

Re: Re: (Source: more anti-spam experience than anyone else.)?
When you claim more experience without providing your resume and without knowing the experience of others on this site, it definitely comes across as arrogance. I have more than 30 years experience in network protocols, yet I would never say I know more (on any subject) than everyone else who comments on this site. I would even hesitate to say I know more than anyone in particular. I suggest you just argue your case. Can you cite any studies?

I would argue that scanning the contents of an email message can only help in categorizing spam versus non-spam. Just one example is using the text/image ratio which is something the metadata doesn't provide. The text/image ration will not ever, by itself, be a determining factor, but it is additional circumstantial evidence.

You mentioned the hop count in your original message but there is no hop count in SMTP. Are you referring to the "hop count" in the IP header (actually the "time to live" field)? Maybe you mean the number of "mail transfer agents" as each one adds a line to the header. But looping is already handled by the IP protocol and it is routers looking at the loop count who decide when a discard is necessary to control looping. So, what do you mean?
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Anonymous Coward, 8 Oct 2013 @ 1:42pm

Re: Re: (Source: more anti-spam experience than anyone else.)?
Not in the least. Machin Shin doesn't say "You're unbelievably arrogant, therefore you're wrong." Machin just says, "You're unbelievably arrogant."

In any case, the claim that the AC has more anti-spam experience than anyone else is clearly not a citeable source, since there is no way to verify it.
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JMT (profile), 8 Oct 2013 @ 1:48pm

Re: Re:
"In fairness, I call that spying. But in extra fairness, that's apparently a subjective terms and reasonable people can disagree about when the "spying" line has been crossed."

Spying is not a subjective term. By definition it's done in a clandestine manner, deliberately hidden from the target and most others. In what way could that possibly apply to Gmail, particularly since we're all regularly discussing this topic in public?
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Anonymous Coward, 8 Oct 2013 @ 1:59pm

Some potential problems with the line of thinking:

- If companies are allowed to peek inside parcels and mail because you have a business relationship with them does that not make the NSA spying also legal?

- We are rapidly approaching an era where computer will be smart, enough to make decisions on their own and approach human level capabilities, therefore that distinction would no longer mater.
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John Fenderson (profile), 8 Oct 2013 @ 2:51pm

Re: Re: Re:
OK, surveillance, then.
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Anonymous Coward, 8 Oct 2013 @ 4:27pm

Re: Re: Re:
You literally could not be any less creative.
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Brazenly anonymous, 8 Oct 2013 @ 6:58pm

Re: This could turn out even worse
This is an extraordinary claim. I expect you to back it up with full data comprised of: total number of users, total number of emails received, total number of emails blocked, thorough analysis and total number of false-positives, total number of false negatives, percentage of email blocked.

The special interest in false positives is because I've seen these kinds of claims before from disreputable DNSBLs. By far their worst issue is false-positive rates, which can sometimes become worse than the average results one would expect from random sampling.
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Brazenly anonymous, 8 Oct 2013 @ 7:17pm

Re: Re: Re: Re:
Correct, but then any email provider can conduct this same surveillance, given that they have a valid reason to do so.

I really can't stress this ability enough. Seriously, we don't have any legitimate need of your password, stop clicking the phishing links. Sorry, back to the topic at hand...

I'm a System Administrator. I've opened user accounts to verify whether they had been compromised and were being used to send out spam because they triggered alerts attached to a rate-limiting service. If they were, the account was locked until it could be securely returned to user control, if they weren't, I logged off from the account.

I'd get fired if I didn't have a good reason, but a service a user has agreed to is the best reason (in my example, avoiding/getting off blacklists so users can send email). Targeted ads are considered a service, and they wouldn't pay if some people didn't use them that way.

If Google does go too far, we can leave and/or take them to court. Because of this, if a Google employee goes too far, they'll get fired. It isn't perfect protection, but the same kind of protection is the only thing realistically keeping thieves out of your house. This protection does not apply with respect to government, which is therefore to be held to a higher (more restricted) standard.
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Anonymous Coward, 8 Oct 2013 @ 7:35pm

Re: Oh, noes! IT'S THE END OF EMAIL!
Whined the SOPA fanboy.
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Brazenly anonymous, 8 Oct 2013 @ 7:37pm

Re:
1) No, so long as a competitive marketplace and government enforcement of clear terms of service are in place, any over-reach by a company can be easily reigned in. The government, however, does not provide opt-out measures and can't be expected to enforce things on itself without careful structuring. As such, it is held to a higher (more restricted) standard.

2) We have been "rapidly approaching" this era since the Church-Turing theory of computability was proposed. The first computers will modeled after the Turing machine, Turing's portion of the above theory.
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techflaws (profile), 8 Oct 2013 @ 10:46pm

Re: Re:
He's the laughingstock of the web.

Says an anonymous jackass. Must be true then.
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Anonymous Coward, 9 Oct 2013 @ 3:18am

You don't accept the "it's not a wiretap if no human looks at it" -excuse from the NSA, so why do you accept it from Google?
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PaulT (profile), 9 Oct 2013 @ 4:12am

Re: Re: (Source: more anti-spam experience than anyone else.)?
"by pointing out that I've been working in this field longer than everyone else"

a.k.a. argument from authority, a well known logical fallacy.

Combined with the fact that you post anonymously, thus denying anyone from seeing if you have the claimed authority to begin with, why should we take your word, when that's all you ever both to supply? No links, no evidence, just "I did this so it's right because I know all - and if you don't believe me do it yourself".

Try providing some actual details and citations next time, then maybe you'll get somewhere.

"You can either fixate on my arrogance"

You provide little else of any actual substance or utility, so why not?
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araybold (profile), 10 Oct 2013 @ 5:25am

Hyperbole
This is the sort of hyperbole that you quite rightly ridicule elsewhere. Nobody is going to take your gmail away.
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