Australian Privacy Foundation



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23 April 2004

Timothy Pilgrim

Acting Federal Privacy Commissioner

GPO Box 5218

SYDNEY NSW 2001

Dear Acting Commissioner

GOOGLE Inc. – GMAIL SERVICE

I am writing with regard to a new Webmail service (GMail) that is being established at an international level by Google Inc, a US company that operates the world’s most popular Internet search engine. Google officially opened an office in Sydney in March 2003 to deliver its targeted advertising programs and search services and, as such, is a corporation with an organisational link to Australia for the purposes of s5B of the Privacy Act 1988. While the GMail service is currently in a trial phase and is not yet readily accessible from the Google Australia site, the introductory material and various terms of use and policies can be viewed at

You will be aware that Google announced on April 1 2004 that it will be offering a web-based email service (GMail) which will provide each customer with one gigabyte of storage space. That is, around 500,000 pages of email per user, apparently without charge. The service is being promoted as a means of creating a centralised and permanent archive of all email. Google says “Google believes people should be able to hold onto their mail forever.”[1] While this may not be possible even at the one gigabyte level, the availability of the GMail service will entice many users to maintain a single account, rather than having several, as many currently do.

Google has stated that the GMail system software will automatically scan the subject headers and contents of all these private emails to generate targeted advertisements relevant to the email content. Concerns have also been expressed that the scanning and automated content analysis will not only apply to GMail clients, but also to those with whom they correspond by email. (Some details of its operation in relation to third parties are not revealed in the online documentation, but we also have unconfirmed reports of targeted adverts accompanying emails from GMail clients).

The GMail service has already prompted substantial criticism from privacy and consumer groups both in the US and in Europe.[2] The GMail service has also generated a considerable amount of media controversy.[3] Privacy International and many of its members are concerned that this service, currently in its testing stage, violates a number of elements of privacy and data protection law, and complaints have been lodged with relevant data protection commissioners.

The Australian Privacy Foundation contends that the GMail service also violates the Privacy Act 1988. In our view, the new service, once it becomes available to Australians, will breach the following National Privacy Principles, and may already do so in relation to emails sent by Australians to existing GMail account holders, and to emails sent by and to any Australian trial account holders:

• Collection (NPP1): Google is collecting information sent by Australians to holders of Gmail accounts, for processing and amendment by Google (insertion of advertising materials) before the email is received by its intended recipient. Google is not a mere passive conduit of the information. In any instance where the sender of the email could reasonably be identified by their email address, or by the content of the email (eg signature blocks), this constitutes collection of their personal information by Google. This collection of non-subscriber personal information breaches NPP1.1 (excessive collection), NPP1.2 (unfair means), and NPP1.5 (collection of information from 3rd parties without notice).

• In relation to its subscribers, Google is also in breach of NPP1.3 (inadequate notice) due to its unilateral right to subsequently change its conditions of service. Its Privacy policy says significant changes will be notified via its log-in page, but such ex-post-facto notification is inadequate in relation to previously collected personal information.

• Use and disclosure (NPP2): The service attempts to reserve the right to make unrestricted changes of purpose without subsequent consent. Its policy says significant changes will be notified via log-in page, but this does not constitute consent. It will also be in breach of NPP2 if it sends unsolicited commercial email to recipients of email sent by GMail customers (as noted above, its proposed practice here is uncertain).

• Security (NPP4): The GMail Terms of Use state: “Google disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Service”. This appears to override the reasonable assurances in the ‘How does Google safeguard…' section of the Privacy Policy. If so, it would clearly be inconsistent with NPP 4.1.

• Retention and Disposal (NPP4): The Privacy Policy states that “Because we keep back-up copies of data for the purposes of recovery from errors or system failure, residual copies of email may remain on our systems for some time, even after you have deleted messages from your mailbox or after the termination of your account.” While the Privacy Q&A is somewhat more reassuring, saying, "Google will make reasonable efforts to remove deleted information from our systems as quickly as is practical” it is subordinate, to the extent of inconsistency, with the Privacy Policy and Terms of Use. Without clear limits that can be justified in terms of the service requirements, we contend that an open-ended retention policy breaches NPP 4.2.

• Access and correction (NPP6): The Terms of Use say “Google also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary …”. This, together with the long list of circumstances, and reports that individuals will not be able to delete personal data from the system, raises serious questions about the lack of subject access to and control over their personal data.

• This concern is further exacerbated by another element of the Terms of Use: “After a period of inactivity, Google reserves the right to disable or terminate a user's account” and “Google may at any time and for any reason … suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system”. A data subject may therefore be denied not only control over, but even access to, data about themselves. This is clearly inconsistent with NPP6.

• Transborder data flows (NPP 9): The Gmail privacy policy states that “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”. While NPP 9 allows transfers to countries without substantially similar laws if the individual has consented, we contend that this cannot be ‘open-ended’ – the countries concerned must be specified for individuals to be able to make an informed decision about the implications of these transfers.

We believe that the GMail service may also breach both the Telecommunications (Interception) Act 1979 and the Spam Act 2003. We will be pursuing these allegations separately with the appropriate authorities, but we note that if the service did breach other laws, there would be consequential additional breaches of the NPPs (eg, unlawful collection under NPP1.2).

We request that you take steps, by exercising your advisory functions under s.27 of the Privacy Act, and if necessary the injunction power under s.98, to ensure that Google does not launch this service in Australia with these inherent contraventions of the Act. With fundamental problems of this magnitude, it is not sufficient to wait for the service to be introduced and complaints to be made.

We would be pleased to make further representations once we know how you propose to address this important issue.

Yours sincerely,

Nigel Waters

On behalf of the Australian Privacy Foundation

Direct contact 02 4981 0828, 0407 230342 and nigelwaters@.au

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[1] Google press release, April 1, 2004

[2] See letter at

[3] A selection of coverage can be viewed at

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