Danny Weitzner's blog

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

At a keynote panel at the WWW2006 conference, “The Next Wave of the Web,” Claire Hart, Exec. VP of Dow-Jones and former CEO of Factiva (before it was acquired by Dow-Jones) said “search is waste of business people’s time. They should be analyzing information not looking for it….” She went on to say business needs information organized into ontologies with Semantic Web techniques in order to make efficient use of information. She did add that “general search engines are fantastic and will always have a place in business.”

Hart cited studies by a research firm called Outsell which made these findings public in Businessweek:

Outsell’s research shows that the amount of time that employees who work with information such as market research, financial reports, and technical documentation spend on searching for what they need is actually on the rise.

SEARCH TIME UP. Surveys conducted at the end of 2004 and 2005 show notable increases in overall information-related task time for workers in academic, corporate, government, and health-care enterprises. Across all enterprises, the average time spent increased 1.1 hours per week per employee, growing from 10.9 hours to 12.0 hours.

Worse yet, the overall portion of their task time spent on information gathering increased on average by almost 1 hour per week, making up the bulk of the overall increase in task time.
Businessweek Online, MAY 15, 2006

Needless to say, there’s a bias here between mass market advertiser funded search versus fee-based enterprise search, but the contrast is striking nonetheless.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

I just can’t resist blogging this one: Andrew McLaughlin, Google’s wise and experienced senior policy counsel, said at today’s Computers Freedom and Privacy conference roundtable on China, that Google’s slogan — “don’t be evil” — was developed as a lighthearted slogan to help geeks at Google express their corporate values, has now become an albatross around Google’s neck. In all seriousness, the panel discussion that followed was fascinating and underscored the deep importance of evolving a global support for the free flow of information on the Web.

Sharon Hom, Executive Director of Human Rights in China amplified Andrew’s point with a very thoughtful comment on how good vs. evil extremism has degraded politics in the United States. When we simply issues using rhetorical models such as: “either you’re with us or against us” or “xyz position is evil” you end up with a political culture that is unable to deal with or make progress on difficult, nuances issues which require a long-term view of how to create more openness in China.

Andrew went on to state a set of principles that Google seeks to follow

1. transparency to users: including an indication of what’s blocked
2. transparency to the world: letting everyone else know what Google blocks and, where possible, why
3. protection of customer information
4. insistence on rule of law and due process (Andrew points out that this will only work when enough companies with sufficient combined market share demand this. Fred Tipton from Microsoft adds to this that this list of companies must be broadened beyond just companies in the Internet market.)
5. Shareholders in companies (especially minority shareholders) should insist on compliance with openness principles.

In response to a question about the details about what transparency would mean in practice, Andrew stated what the ideal is, in Google’s view, and the reality of what they believe is possible in China today. Google’s ideal can be seen in the way that they handle copyright and other type of takedown requests in democratic countries. When legally required to remove some part of a search result, they indicate that removal at the bottom of the search page, send a copy of the legal request or law that requires the remove to an independent site called ChillingEffects.org, and provide a link from the bottom of the search results page to the relevant order. For example, a search on google.de for B-J-E (a neo-Nazi, racists organization that is illegal in Germany, yields a page with the following statement at the bottom:

Aus Rechtsgründen hat Google 1 Ergebnis(se) von dieser Seite entfernt. Weitere Informationen über diese Rechtsgründe finden Sie unter ChillingEffects.org.

Google does something similar for DMCA (US copyright-related) takedown requests.

The problem, according to Andrew is that Google can’t do this much in China because identity of sites filtered probably constitute a state secret (even though Google itself makes blocking decisions). Sharon Hom explained that any violation of state secrets law in China can result in a secret trial after which defendants tend to be sent to jail for a long time. She stressed that under Chinese law as it stands today, what constitutes a State Secret is determined after the fact and can certainly include data that isn’t even created by the government. Information that the Chinese government considers sensitive (the number of political prisoners, the number of protests, the number of abortions, etc.) will be classified as a state secret and those who discuss this information are subject to prosecution.

On the subject of traparency, Sharon when on to discuss the value of: Value of transparency varies significantly: Transparency can be used against NGOs (for example, Chinese government tried to require HR In China to disclose list of funders as a condition of participation in the WSIS process). Transparency isn’t very useful for Chinese users, who know that sites are being blocked anyway. However, transparency is important for NGOs who are trying to monitor freedom of expression and human rights from outside China.

My own view (see some slides from a talk I gave at the University of Southampton) of this issue is that the actions of China reveal a significant weakness in the global regulatory framework of the Internet and the Web. During the first decade of the global use of the Internet, we saw the Net spread and prosper largely through a deregulatory, hands-off model pushed by the United States through the work of Ira Magaziner. While this worked of a while, it left the Internet without any affirmative, globally recognized protections for the free flow of information. I believe we are coming to a point where we need more affirmative and binding international agreements in support of the free flow of information as a fundamental value for the Web around the world.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Tim Wu and Jack Goldsmith’s new book, “WHO CONTROLS THE INTERNET: Illusions of a Borderless World.” is out. I suppose that every generation of scholars and practioners are entitled to at least partially re-invent legal frameworks, but I was quite surprised at how far Wu and Goldsmith have gone to suggest that the new expressive and democratizing potential of the Internet will and/or should be just swallowed up by State power and that there’s really nothing we can or should do about it. This debate is far from theoretical as the international community (governments as well as leading companies such as Google, Microsoft, and Yahoo, as well as various segments of Chinese government and society) wrestles with the response to Chinese demands for censorship of political speech and intrusion on internationally-recognized norms of privacy. The theory we adopt about the relationship between the Web and national law can have a determinative impact on these and other questions.

It’s important to pay careful attention to the argument in this book because the authors present us with a false dilemma in opposing to a utopian anarchy (the way they characterize early views of the Internet and the law) against a state-dominated, bordered Internet (where they say we’re going to end up). It would be worse than ironic if the spread of the speech-enhancing medium that is the Internet ends up as the occassion for us to turn our collective back on the centuries-old project of expanding the right of individual expression.

I did a review of the Wu/Goldsmith book for the Wilson Quarterly, some of which I quote here. As a foil for the new theory of the Internet and the law that the authors propound, they represent the old style of thinking through the words of John Perry Barlow, a Grateful Dead songwriter and cofounder of the Electronic Frontier Foundation, an Internet civil liberties group. Barlow issued a “Declaration of the Independence of Cyberspace” to governments. It read in part,

?I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. . . . Cyberspace does not lie within your borders.?

My review of the book goes on to suggest that using Barlow’s theory as a strawman fails to provide a complete understanding of how Internet policy did evolve in its early days, and leads to some serious errors in analysis.

That cyberspace has not ended up independent of national sovereignty is apparent to all of us. Consumer fraud occurs but is prosecuted by attorneys general; obscenity, though available, is generally illegal; and businesses make contracts online that sometimes are broken and get adjudicated by the same courts that enforce offline contracts. In the face of this inexorable civilization (John Perry Barlow called it colonization) of cyberspace, Jack Goldsmith and Tim Wu, professors at Columbia and Harvard law schools respectively, seek to convince us that despite the hopes of the early digerati, or Internet enthusiasts, the medium’s users have properly recognized its subservience to national law.
[..]
[G]oldsmith and Wu are so busy correcting the romantic technological determinism of the digerati that they fall into a sort of legalistic determinism. Having established that nations should have some role on the Internet, and that borders do have some value, they swing us alarmingly from the anarchy of Barlow’s cyberspace to a realpolitik that places national sovereignty above all other moral and political values.

After a vividly documented chapter on the challenges that Chinese censorship and political repression pose to the Internet, our law professors tell us that on the bordered Internet, “there is no legitimate basis for giving any single law a kind of global constitutional status.” So the Chinese laws must be given effect online along with all other national laws. Are Goldsmith and Wu so convinced of the legitimacy of state power that they are prepared to toss out international norms of human rights?

I believe that part of this extreme slide toward the power of the state has to do with a misreading of the document that I think is the real declaration of independence for the Internet the US Supeme Court decision in Reno v. ACLU. Goldsmith and Wu discuss this case, but frankly seem to miss the point. Without any explanation or citation (elements of an argument one would normally expect of law professors), they associate this case with the ‘borderless’ and lawless view of the Internet associated with Barlow. To the contrary, when considering the Internet then in 1997, the Supreme Court stated very clearly that the Internet deserved the protection of law (the US Constitution in this case) because of it’s democratic potential. Reno stands as the first time that a major legal system embraced the Internet. It was not, as the authors would have us belief, an aberration to be corrected once the Court developed a more mature understanding of the Internet.

By mischaracterizing Reno as part of the ‘wacky’ borderless Internet theory, they lose track of the direction that it set for the development of Internet law. Goldsmith and Wu are right to point out that the technology of the Internet alone does not mandate any special legal treatment. But they are wrong to suggest that a legal theory of the Internet can be developed without recognition of what is unique about the Net. It is the potential of Web technology to enhance human societies that should inspire us all to protect its ability to realize that potential. That different nations will have different views of what that potential is should not surprise us. But where differences, as expressed through the exercise of national sovereignty, lead to restrictions on human rights, the free exchange of ideas and free trade, we should recognize those as clearly harmful, not just reflexively accept them in the name of respecting borders.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

While attending a US Department of Homeland Security workshop on privacy (see also complete notes on the workshop), I had a chance to think a bit about one aspect of US privacy law with important bearing on Semantic Web applications with personal information — the doctrine of ‘practical obscurity’. Practical obscurity is legal doctrine that one may have a privacy interest in the compilation of information (aka a dossier) even though each piece of information composing the dossier is itself publicly available.
The doctrine of practical obscurity was first articulated in a US Supreme Court case called U.S. DEPT. OF JUSTICE v. REPORTERS COMMITTEE, 489 U.S. 749 (1989). This case concerned a reporter?s request for FOIA access to ?rap sheets? (compilation of an individual?s arrest records). Even though the individual arrest records were found to be publicly available in all of the relevant court houses, the compilation of those individual records were found to impinge the privacy rights of the subject by burdening his ?practical obscurity.?The Court explained:

[B}oth the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster’s initial definition, information may be classified as “private” if it is “intended for or restricted to particular person or group or class of persons: not freely available to the public.” Recognition of this attribute of a privacy interest supports the distinction, in terms of personal privacy, between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole. The very fact that federal funds have been spent to prepare, index, and maintain these criminal-history files demonstrates that the individual items of information in the summaries would not otherwise be “freely available” either to the officials who have access to the underlying files or to the general public. Indeed, if the summaries were “freely available,” there would be no reason to invoke the FOIA to obtain access to the information they contain. Granted, in many contexts the fact that information is not freely available is no reason to exempt that information from a statute generally requiring its dissemination. But the issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information. Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.

Much of the discussion at the workshop (including many distinguished data protection officials from Europe and Asia) accepted (reluctantly) the view that practical obscurity is fast becoming ineffective at protecting privacy, given the increasing availability of previously separate information sources through a common search interface (the Web). One discussant pointed out that the practical obscurity theory never really protected against privacy, but just made it harder and more expensive to get a private information.

With the success of the Semantic Web, we’re likely to see an even further decline in the ‘practical obscurity’ we may have come to rely upon.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Ironically enough, just as the Net Neutrality debate is really heating up, Western Union decides it’s time to send the last telegraph, ending an extraordinary 150+ year chapter in the history of human communications. (The first commercial telegram was sent in 1851 after Samuel Morse sent the first telegram using Morse code in 1844.) This historical confluence leads me to wonder, what’s so different about the Internet and the Web today than the telegram was. They’re all communications systems that send messages back and forth using a set of standardized communications protocols, data formats, and addresses.

Commenting on the threat of a non-neutral Internet service model, Vint Cerf stated the worry that many have:

?In the Internet world, both ends essentially pay for access to the Internet system, and so the providers of access get compensated by the users at each end,? said Cerf, who helped develop the Internet?s basic communications protocol. ?My big concern is that suddenly access providers want to step in the middle and create a toll road to limit customers? ability to get access to services of their choice even though they have paid for access to the network in the first place.?

What exactly is wrong with making customers pay for the choices they make, however? As far as I can tell, we all do pay for the network services that we use in rough proportion to the cost of those services. Today network costs are allocated between users (who pay for their own access to the Net) and large services (like Amazon, who pay a much higher price for their Internet connection because they put a lot more traffic load on the Net). But what would be wrong with a change to this arrangement — allowing large content providers like Google or Amazon to pay for the privilege of having their data get to customers faster than other services?

What’s wrong is that it would begin to break the unique many-to-many nature of how information is linked together on the Web. Here we begin to get at the heart of what makes the Web different from other communications networks. The Web is built to take advantage of the really time, many-to-many communications capability of the underlying Internet. Many Internet applications we use are largely just point-to-point, such as email. But some, like the Web and instant messaging chat rooms depend on the ability to aggregate messages from many sources around the Internet. Some of the most social valuable and commercially popular types of services on the Web take advantage of the ability to link together information from across the Web into what appears to be a single information resource (aka a Web page). Consider:

• portals — aggregating news or information from many different Web sites (ie. Yahoo)
• search engines — taking advantage of the links that exist between documents (MSN, Google)
• scientific research collaborations — using the Web scientists have the ability to bring together information from different web pages in order to discover new knowledge by exploring links across data sets (Scientific researchers were the first users of the Web for this very reason, Today this avenue is being pursued particularly in the Life Sciences community.)
• blog - today’s web logs are the leading edge of mass usage of truly web-like decentralized information systems and they seem to be showing both the cultural, political and commercial benefit of this open architecture. (see below)

All of these uses of the Web depend on the ability to create links between pages and to have those links work for all users without any prior coordination. Changing the business arrangments associated with Internet service in way that would disrupt these links would have a dramatic and negative impact on the Web as we know it.

Here’s one more detailed illustration of the importance of many-to-many linking without prior coordination. This image shows a rough view of the information, data and money flow associated with making this blog work. This blog aggregates data from several other web services. To the end user all the data on the page appears to be located at the same URL, but it is actually drawn from a number of different sites. These independent sites have no prior connection arrangements?the linkage of all the sites is made possible by the creativity and coordination of the blog host. (See the CDT Net Neutrality Reading Room for more information.

It’s pretty clear to me that we’re still at the very beginning of the public policy debate over Net Neutrality. Some telecommunications companies have made dramatic statements of their plans to chance the Internet business model and these statements have caused justified alarm. I’m hoping that the debate can mature somewhat beyond the current rhetoric. While it’s easy to see why network operators (cable and telcos) want to preserve maximum flexibility as the enter new businesses (and invest a lot of money), my hope is that they will also realize that it’s not in their business interest to kill the Internet goose (or Google) that has laid such a golden egg for all.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

The so-called ‘Net Neutrality’ debate is rising to full bore this week. In advance of a Senate Commerce Committee hearing, the commercial protagonists are staking out their positions. For the carriers, John Thorne, a top lawyer at Verizon (Verizon Executive Calls for End to Google’s ‘Free Lunch’) says:

“The network builders are spending a fortune constructing and maintaining the networks that Google intends to ride on with nothing but cheap servers,” Thorne told a conference marking the 10th anniversary of the Telecommunications Act of 1996. “It is enjoying a free lunch that should, by any rational account, be the lunch of the facilities providers.”

He went on to characterize the difficulties of finding enough investment incentive to construct new network infrastructure:

the task of getting thousands of local franchise agreements to offer cable television; and what he called “Google utopianism,” a concept he likened to “spiked Kool-Aid.”

One the other side, Vint Cerf, Google VP and leading Internet architecture responds that Google is:

worried that if net neutrality protections are not enacted, the Internet’s freedom could be compromised, limiting consumer choice, economic growth, technological innovation and U.S. global competitiveness.

“In the Internet world, both ends essentially pay for access to the Internet system, and so the providers of access get compensated by the users at each end,” said Cerf, who helped develop the Internet’s basic communications protocol. “My big concern is that suddenly access providers want to step in the middle and create a toll road to limit customers’ ability to get access to services of their choice even though they have paid for access to the network in the first place.”

Public interest advocacy groups are jumping in, too: from Public Knowledge a position paper, “Good Fences Make Bad Broadband: Preserving an Open Internet through Net Neutrality” (J. Windhausen, 6 Feb 2006) and from the Center for Democracy and Technology, an online reading room with several operational Internet traffic scenarios that illustrate how the Net works today and what might be threatened.

I begin to think that the very framing of the debate as about Net “Neutrality” confuses the issue. The real question is: is there any such thing as a non-neutral Internet? The Internet and the Web operate as fundamentally neutral and non-discriminatory platforms. There is certainly certain kinds of price discrimination, as Cerf notes, but content discrimination and preferential routing are contrary to the operation of the Internet and the Web. There may be other TCP/IP-based networks (some carriers are talking about deploying new Cable TV services with IPTV), but these aren’t the Internet.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Of the many thousand US citizens whose communications have been monitored in the course of the Administration’s warrantless wiretapping program, it appears that only a handfull generated enough suspicion to merit further investigation. According to the Washington Post, Surveillance Net Yields Few Suspects,” 5 Feb 2006, p.A01:

Fewer than 10 U.S. citizens or residents a year [of those targetted by unwarranted surveillance], according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

The Bush administration refuses to say — in public or in closed session of Congress — how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

The fact that so few of these warrantless searches resulting in further investigation presents a paradox. One might see it as good news: only a few of those whose privacy was invaded are being subjected to further intrusion, but the searches, though possibly illegal, were not for naught. Or, is it bad news: many American citizens have their basic Fourth Amendment rights violated. The Post goes on:

Contributors to the technology said it is a triumph for artificial intelligence if a fraction of 1 percent of the computer-flagged conversations guide human analysts to meaningful leads.

So, though many of those surveilled are innocent, at least there may be some national security benefit. However, some who have been involved in data mining programs, such as Jeff Jonas, are sceptical. Jonas (who sells data mining-related technology at IBM) opines:

… pattern matching, he argued, will not find it. Techniques that “look at people’s behavior to predict terrorist intent,” he said, “are so far from reaching the level of accuracy that’s necessary that I see them as nothing but civil liberty infringement engines.” (emphasis added)

Jonas is probably overstating, but all of this uncertainty about effectiveness certainly raises even more questions about how far suspiciousless searches to be allowed to go without some measure of oversight from a ‘detached, neutral magistrate,’ who can evaluate these questions in the context of an actual case involving actual security risks and actual people’s rights, as the Constitution requires.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Among the many comments on Google’s recent decision to give the Chinese government editorial control (aka censorship) over google.cn, is a thoughtful column by Sebastian Mallaby, “Google and My Red Flag” (Washington Post 30 January 2006). The situation that Google finds itself in is, of course nothing new for media companies. About five years ago a cable/satellite firms such as Fox/SkyTV had a similar set of troubles when trying to launch a service in China and only got government permission to operate after agreeing to limit programming based on government requirements:

We won’t do programs that are offensive in China,” said Wang Yukui, a Beijing-based spokesman for News Corp….That stance is in keeping with Star TV’s regional policy of not broadcasting programs that are unacceptable to local audiences, he said…. In 1994, the Star network removed the BBC’s international news from its service because a programme critical of late leader Mao Zedong offended the authorities.

So Google really has the same problem — they need permission to do business in China. Mallaby worries at the front about whether Google is acting ethically by complying with government censorship requirements. But then he makes an extraordinary statement:

The censored material would not have reached China without Google’s investment. (my emphasis)

Of course, on it’s face, this is wrong. The data being censorsed is already on the Web with or without Google. Google’s contribution is to help users find the data. That contribution has been invaluable for the Web, of course. But the relationship between search and censorship is complex. Mallaby goes on to say that Google’s decision to be complicit with censorship is balanced out by the fact that

Google has negotiated the right to disclose, at the bottom of its Chinese search results, whether information has been withheld — a disclosure that may prompt users to repeat their search using google.com instead of google.cn. Of course, the second search might be frustrated by Cisco’s routers. But disclosing censorship is half the battle. If people know they are being brainwashed, then they are not being brainwashed.

The value of the transparency offered depends critically on what information Google provides. For example, when a user presents google.cn with the search term ‘democracy’, what will the user see? Presumably the usual list of 100s or 1000s of links and then what? A flag at the bottom that says ’some results supressed.’? The power of Google’s caching and search history functions would allow Google to report a lot of detail about what search terms are blocked, what sites are blocked, how may users are denied access to particular resources, etc.

The big question for Google: how far will they be able to take transparency in service of freedom of expression? When will the transparency that’s offered as a substitute for the actual free flow of information be views as equally threatening to government interests, and thus have to be limited? In this sense, Google the business faces the same set of pressures as more traditional media companies like Fox. Whether they respond differently remains to be seen.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Lots of concern over the last few days about the government supoena of Google search records. But is this really a “fishing expedition” in the traditional sense of that term? Subpoenas and wiretap orders not justified by adequate prior suspicion are properly rejected as ‘fishing expeditions’ — an effort by a prosecutor to either look amongst innocent behavior for someone who might be committing a crime, or to look at someone who seems guilty where the cops can’t figure out what s/he did without snooping through lots of records. These government practices are rejected by the Fourth Amendment and general fairness as abuses of government power where there’s no clear link between the target of the fishing and actual suspicion of a crime. The Fed’s effort to pry into Google’s files (about the rest of us) are different. Unless the Justice Department is using this a ruse to catch people who are violating obscenity or child pornography laws, what’s going here is more of an effort to gather general evidence about the content of the Web than an effort to fish around in search of crimal behavior. That doesn’t make it any better, but it does probably explain why the other three large search engines have already compied.

In a strongly worded critique of the Justice Department action, the New York Times editorial board (Fishing in Cyberspace - New York Times, 21 January 2006) writes:

Enough is never enough, not when the government believes that it can invade your privacy without repercussions. The Justice Department wants a federal judge to force Google to turn over millions of private Internet searches. Google is rightly fighting the demand, but the government says America Online, Yahoo and MSN, Microsoft’s online service, have already complied with similar requests. This is not about national security. The Justice Department is making this baldfaced grab to try to prop up an online pornography law that has been blocked once by the Supreme Court. And it’s not the first time we’ve seen this sort of behavior. The government has zealously protected the Patriot Act’s power to examine library records. It sought the private medical histories of a selected group of women, saying it needed the information to defend the Partial-Birth Abortion Ban Act in the federal courts.

Strong stuff. I certainly agree that there are lots of big questions raised by the subpoena, but am not sure I go as far as to see it as part of a Bush Administration conspiracy to invade our privacy. More likely, this is Justice Department officials trying desperately to win First Amendment blessing, after numerous losses, for what I think is a fruitless approach to child protection.

The editorial continues:

The battle raises the question of how much of our personal information companies should be allowed to hold onto in the first place…. When pressed on privacy issues, Google - whose informal motto is “Don’t be evil” - says it can be trusted with this information. But profiling consumers’ behavior is potentially profitable for companies. And once catalogued, information can be abused by the government as well. Either way, the individual citizen loses.

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Google creates and holds a lot of transactional information about how millions of people use the Web: searches we perform, pages we look at, ads we click on, driving directions we generate, etc. This has aroused much fear on the part of some privacy advocates. As the owner of all of this data — yes, Google owns (or at least legally controls) the data even though it’s about us — we’re all dependent on Google to protect the privacy of our data. Now, according to a report in the San Jose Mercury News (Feds after Google data, 01/19/2006), Google is refused to comply with a government subpoena for just this data, assert their users privacy interests as a justification. According to the Merc:

In court papers filed in U.S. District Court in San Jose, Justice Department lawyers revealed that Google has refused to comply with a subpoena issued last year for the records, which include a request for 1 million random Web addresses and records of all Google searches from any one-week period.

The government is looking for this data in order to develop arguments in support of the latest effort to censor certain sexually-explicit material.
In this case, Google is assuming the role of privacy protector very similar to that which telephone carriers and cable companies have traditionally performed. Historically, it has often been phone companies who have protected, or at least sought to protect, their customers privacy against government access requests because of the simple fact that the telcos, not the individuals whose privacy is at risk, have the physical ability to grant to deny access to the government. For example, telephone company lawyers supported (unsuccessfully) the proposition that wiretaps violated the 4th Amendment (Olmstead v. US, 1928), lobbied (successfully) for privacy protection for email and other electronic communications (Electronic Communications Privacy Act, 1986), and helped to stop (successfully) the Clinton Administration with the NSA from forcing the Clipper Clip key escrow system on US phone users. Recently, Verizon tried (successfully) to prevent the RIAA from forcing Verizon to reveal the identity of certain customers suspected of copyright infringement through file sharing. Cable companies sought (successfully) to protect the privacy of subscriber billing information.

Now comes Google following in the footsteps of these traditional communications providers. Those provides protected what we communicated about and Google is trying to protect what we’re reading and viewing. On the down side of their case is the strong preference by courts to allow as much information relevant to any given case to be discovered in order to aide the ultimate truth-seeking function of the judicial process. The Merc reports that the dispute has been ongoing for a year. Either way it turns out, I hope that at least we’ll soon get a clear view into the terms of the subpoena and whatever reasoning the court follows in decided whether or not the quash the request.

Update 20 Jan 2006: The Washington Post (Google Refuses Demand for Search Information, A01, 20 January 2006 and the New York Times (Google Resists U.S. Subpoena of Search Data, A1, 20 January 2006) have picked up. The Times helpfully provides a link to the government motion in Gonzales v. Google arguing that the court should compel compliance with the subpoena.