You might call it leading from behind; you might call it smart, proactive lawyering; or you might call it good business. Either way, it’s a brilliant move.
Less than a month after a federal judge held that National Security Letters (NSLs) are unconstitutional, Google has decided it will also challenge the practice — and in doing so, it drew the same judge that just held NSLs were unconstitutional, Susan Illston of the Northern District of California.
Once again, Google picked a fight on an important privacy issue, and it did it in a way that makes a win likely, even if it loses.
If it seems like a reoccurring theme, it’s because it is. Earlier this year Google revealed that it requires a probable-cause warrant for any law enforcement request for user emails and cloud content, despite the fact that the governing federal statute on electronic communications (ECPA) doesn’t always require one.
Google’s cover? A Sixth Circuit opinion that held that email content is protected by the Fourth Amendment of the US Constitution, and a growing awareness of email privacy issues (in part because of the fallout from the Petraeus affair). Other email providers soon announced they also require warrants for this information.
Let’s put the substance of these difficult privacy issues aside for a minute — they are tough, and there are valid interests on both sides — and focus on Google’s strategic brilliance.
Google’s foray into high-profile user privacy issues is carefully calculated. It’s not just that Google has picked battles it can win — both public opinion and the law have already started to turn Google’s way on NSLs and email privacy — it’s that even if Google loses on these issues, its effort will pay off in the long run.
Here’s how Google will win with this latest (some would argue, selective) campaign to protect user privacy:
First, Google will win with its customers, who regularly store private and sensitive photos, documents, and emails on its servers. Don’t get it twisted — these cases are not just about privacy, they are also about business. A world where government has easy access to cloud-based information is a world where Google’s services are less valuable. And a world where customers see Microsoft and Twitter following Google’s lead on privacy issues is a world where Google’s stock stays at an all time high.
Second, Google will win the public relations battle. Google has had mixed reviews on user privacy. Let’s put it this way: there is a 29-page wikipedia page called “criticism of Google,” and an entire section of the article is about privacy. But I suspect that if you ask people what they think about Google’s privacy practices today, they are much more likely to think of transparency reports and Google’s lawsuits against the FBI than about Google’s recent street view controversy.
Third, it will win with its critics in the privacy and civil liberties community, who must once again give Google their grudging respect. This is beginning to become a reoccurring theme, going back to Google’s decision to pull out of China and its recent decision to include NSL data in its transparency reports.
Fourth, Google will win political leverage over regulators, by showing them that it is willing to use the courts to get its way. Take ECPA reform. Until very recently, law enforcement officials were fighting hard to prevent changes to email privacy laws, which allowed them to get email and cloud data without a warrant under certain circumstances. But last month, the Department of Justice argued before congress that key provisions of the law are “unprincipled” and should be updated.
What gives? Here’s one possibility: once Google decided it would require a warrant for law enforcement requests for email and cloud data, others — including Yahoo, Microsoft, and Facebook — announced similar policies. That put the DOJ in a tough position: either fight the decision in the courts, and risk permanently losing the right to get warrantless access to cloud data, or avoid a court battle by asking congress to reform the privacy laws, even though such reform will invariably be a multi-stakeholder process (and of course, Google is sure to be one of the stakeholders).
And finally, with these moves Google will win with prospective hires, including the talented 20-something engineers who want to join a company that cares about the issues they care about.
Put it all together and it’s a win for Google. Whether you’re a fierce critic of Google’s privacy practices or ready to drink the cool-aid you have to admire the company’s strategic acumen.