Notes by John Gilmore on Google's Gmail terms-of-service, April 7, 2004, published with permission

These terms don't restate the law. They sweep it aside.

You agree to accept any future changes to the terms or policies. Any. If you don't agree NOW to all future changes, you can't ever use the service, even now under the current terms.

They can cut you off for any reason, or for no reason. This is not a common carrier.

> (i) use the Service to upload, transmit or otherwise distribute any
> content that is unlawful, defamatory, harassing, abusive, fraudulent,
> obscene, contains viruses, or is otherwise objectionable as reasonably
> determined by Google;

One of the usual lists of things you aren't allowed to communicate -- far broader than what the law permits to be censored. Not that it matters, since they can cut you off without a reason.

> and federal penalties and other legal consequences. Google reserves
> the right, but shall have no obligation, to investigate your use of
> the Service in order to determine whether a violation of the Agreement
> has occurred or to comply with any applicable law, regulation, legal
> process or governmental request.

Note the last phrase. A mere "governmental request" gives them the right, under the contract you agreed to, to investigate your use of the service.

> Google reserves the right at all
> times to remove or refuse to distribute any content on the Service,
> such as content which violates the terms of this Agreement. Google
> also reserves the right to access, read, preserve, and disclose any
> information as it reasonably believes is necessary to (a) satisfy any
> applicable law, regulation, legal process or governmental request,

There it is again. A "government request" gives them the right to access, read, preserve, and disclose any information in your mailbox. Why get a wiretap order when a mere request will suffice?

> (c) detect, prevent, or otherwise address fraud,
> security or technical issues (including, without limitation, the
> filtering of spam),

This is part of the same run-on sentence as above. If they allege a "technical issue", including spam filtering, then they can access, read, preserve, and disclose anything in your mailbox. Since they probably do spam filtering for everybody (both for incoming and outgoing mail), then they have the right to read and disclose the contents of your email at any time.

Many spam-filtering services send copies of alleged spams to some central location. If they get N copies of similar messages, they declare it spam and publish the offending messages on the web. Google's right to send your spam to such services gives them the right to send ANY of your email to ANYONE -- for publication.

> Accordingly, you agree that you will not copy, reproduce, alter,
> modify, or create derivative works from the Service. You also agree
> that you will not use any robot, spider, other automated device, or
> manual process to monitor, cache, or copy any content from the Service.

You can't use a program -- or even a secretary, or a personal plan or habit -- to pull your own email out of the service! If you want to terminate and move your mail elsewhere, you can't extract or keep copies of your own email.

This is mixed in with a paragraph that talks about the "Google Rights" (it's never stated what IP rights exactly these are) -- but these two sentences don't mention the Google Rights at all, merely the Service.

> Your Intellectual Property Rights. Google does not claim any
> ownership in any of the content, including any text, data,
> information, images, photographs, music, sound, video, or other
> material, that you upload, transmit or store in your Gmail account.
> We will not use any of your content for any purpose except to
> provide you with the Service.

But providing you with the Service presumably means doing all the things that this agreement permits them to do, e.g. disclose your information anytime they want. In other words, that last sentence is null and void. They don't claim to own it, but you have already granted them the right to do anything they want with it, including put it on billboards or shout it to the rooftops. Or delete it before you ever saw it.

> 7. Privacy. As a condition to using the Service, you agree to the
> terms of the Gmail Privacy Policy as it may be updated from time to
> time. Google understands that privacy is important to you. You do,
> however, agree that Google may monitor, edit or disclose your personal
> information, including the content of your emails, if required to do
> so in order to comply with any valid legal process or governmental
> request (such as a search warrant, subpoena, statute, or court order),
> or as otherwise provided in these Terms of Use and the Gmail Privacy
> Policy. Personal information collected by Google may be stored and
> processed in the United States or any other country in which Google
> Inc. or its agents maintain facilities. By using Gmail, you consent
> to any such transfer of information outside of your country.

There's that "or government request" again. Any valid legal process "OR" governmental request, presumably including invalid legal processes. This time you're agreeing that they can monitor, revise, or disclose your identifying information and their record of every Google search you ever did. Oh, and if your local laws provide you with better privacy, you just waived the right to keep the information where your local laws will protect it. Privacy? What privacy?

> No
> human will read the content of your email in order to target such
> advertisements or other information without your consent, and no

By agreeing to these terms, have you provided your consent? You already granted them the right to access, read, preserve, and disclose it for any number of trumped-up reasons (their own or any government's).

(I see this all the time in those HIPAA letters that everyone is required to sign on their first visit to the doctor, dentist, or pharmacy. They say you have the right to demand privacy, but that you must do it in writing. By signing the document, in writing, without modifying it to demand privacy, you are thereby waiving privacy.)

> 12. Indemnification. You agree to hold harmless and indemnify Google,
> and its subsidiaries, affiliates, officers, agents, and employees from
> and against any third party claim arising from or in any way related
> to your use of the Service, including any liability or expense arising

Clever. They aren't a common carrier, so the law doesn't protect them for things that you do through the service -- so you must indemnify them. They get all the benefits of common carrier status with none of the responsibilities.