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Category: Google & Search Engines

How We’ll Know the Wikimedia Foundation is Serious About a Right to Remember

The “right to be forgotten” ruling in Europe has provoked a firestorm of protest from internet behemoths and some civil libertarians.* Few seem very familiar with classic privacy laws that govern automated data systems. Characteristic rhetoric comes from the Wikimedia Foundation:

The foundation which operates Wikipedia has issued new criticism of the “right to be forgotten” ruling, calling it “unforgivable censorship.” Speaking at the announcement of the Wikimedia Foundation’s first-ever transparency report in London, Wikipedia founder Jimmy Wales said the public had the “right to remember”.

I’m skeptical of this line of reasoning. But let’s take it at face value for now. How far should the right to remember extend? Consider the importance of automated ranking and rating systems in daily life: in contexts ranging from credit scores to terrorism risk assessments to Google search rankings. Do we have a “right to remember” all of these-—to, say, fully review the record of automated processing years (or even decades) after it happens?

If the Wikimedia Foundation is serious about advocating a right to remember, it will apply the right to the key internet companies organizing online life for us. I’m not saying “open up all the algorithms now”—-I respect the commercial rationale for trade secrecy. But years or decades after the key decisions are made, the value of the algorithms fades. Data involved could be anonymized. And just as Asssange’s and Snowden’s revelations have been filtered through trusted intermediaries to protect vital interests, so too could an archive of Google or Facebook or Amazon ranking and rating decisions be limited to qualified researchers or journalists. Surely public knowledge about how exactly Google ranked and annotated Holocaust denial sites is at least as important as the right of a search engine to, say, distribute hacked medical records or credit card numbers.

So here’s my invitation to Lila Tretikov, Jimmy Wales, and Geoff Brigham: join me in calling for Google to commit to releasing a record of its decisions and data processing to an archive run by a third party, so future historians can understand how one of the most important companies in the world made decisions about how it ordered information. This is simply a bid to assure the preservation of (and access to) critical parts of our cultural, political, and economic history. Indeed, one of the first items I’d like to explore is exactly how Wikipedia itself was ranked so highly by Google at critical points in its history. Historians of Wikipedia deserve to know details about that part of its story. Don’t they have a right to remember?

*For more background, please note: we’ve recently hosted several excellent posts on the European Court of Justice’s interpretation of relevant directives. Though often called a “right to be forgotten,” the ruling in the Google Spain case might better be characterized as the application of due process, privacy, and anti-discrimination norms to automated data processing.

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Fifty Years of “I know it when I see it.”

On June 22, 1964, Justice Potter Stewart coined the phrase “I know it when I see it” in his concurring opinion in Jacobellis v. Ohio. Fifty years later, that expression holds the distinction of being one of the few modern legal phrases to become a regularly accepted expression among educated Americans. The half-century anniversary of Jacobellis provides a fitting opportunity to ask why “I know it when I see it” has enjoyed such popularity and what lessons that phrase and its history might hold for us today.

Jacobellis reversed the conviction of an Ohio movie theater manager for showing obscene material in the form of the French film Les Amants (The Lovers), which included a sex scene at its conclusion. The court’s 6-3 decision was highly fragmented, with six opinions in total and the plurality garnering only two votes.

Potter Stewart

In a short 144-word concurring opinion, Stewart wrote that he found it almost impossible to define obscenity precisely, which should only include “hard-core pornography.” His now famous line concluded the opinion:

 “But I know it when I see it, and the motion picture involved in this case is not that.”

At the time, the pithy phrase actually garnered little interest in the public sphere. Many newspapers chose instead to focus on another obscenity case decided that same day, Quantity of Books v. Kansas. Those journalists who did write about Jacobellis largely ignored “I know it when I see it” and chose to focus on the legal technicalities the case posed.

While it is difficult to pinpoint exactly when Stewart’s iconic expression became common, we can chart its growing popularity via Google’s Ngram search engine. Google Ngram measures the percentage of English language books that contain a phrase up to five words long. Because “I know it when I see it” is seven words, I ran the search for each five-letter segment of the phrase (“I know it when I;” “know it when I see;” “it when I see it.”). The graph clearly shows the steeply rising and still growing interest in Stewart’s phrase, starting slightly after 1964:

I know it when I see it Ngram

 

The Ngram search also reveals some interesting instances of similar phrases, both legal and not, pre-dating Jacobellis. Consider two examples: In an obituary for Benjamin Cardozo that ran in the Columbia, Yale and Harvard law journals in 1939, Learned Hand praised Justice Cardozo for his wisdom, writing:

“And what is wisdom — that gift of God which the great prophets of his race exalted? I do not know; like you, I know it when I see it, but I cannot tell of what it is composed.”

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The right to be forgotten and the global reach of EU data protection law

It is a pleasure to be a guest blogger on Concurring Opinions during the month of June. I will be discussing issues and developments relating to European data protection and privacy law, from an international perspective.

Let me begin with a recent case of the Court of Justice of the European Union (CJEU) that has received a great deal of attention. In its judgment of May 13 in the case C-131/12 Google Spain v AEPD and Mario Costeja Gonzalez, the Court recognized a “right to be forgotten” with regard to Internet search engine results based on the EU Data Protection Directive 95/46. This judgment by the highest court in the EU demonstrates that, while it is understandable that data protection law be construed broadly so that individuals are not deprived of protection, it is also necessary to specify some boundaries to define when it does not apply, if EU data protection law is not to become a kind of global law applicable to the entire Internet.

I have already summarized the case elsewhere, and here will only deal with its international jurisdictional aspects. It involved a claim brought by an individual in Spain against both the US parent company Google Inc, and its subsidiary Google Spain. The latter company, which has separate legal personality in Spain, acts as a commercial agent for the Google group in that country, in particular with regard to the sale of online advertising on the search engine web site www.google.com operated by Google Inc. via its servers in California.

The CJEU applied EU data protection law to the Google search engine under Article 4(1)(a) of the Directive, based on its finding that Google Spain was “inextricably linked” to the activities of Google Inc. by virtue of its sale of advertising space on the search engine site provided by Google Inc, even though Google Spain had no direct involvement in running the search engine. In short, the Court found that data processing by the search engine was “carried out in the context of the activities of an establishment of the controller” (i.e., Google Spain).

Since the Court applied EU law based on the activities of Google Spain, it did not discuss the circumstances under which EU data protection law can be applied to processing by data controllers established outside the EU under Article 4(1)(c) of the Directive (see paragraph 61 of the judgment), though the Court did emphasize the broad territorial applicability of EU data protection law (paragraph 54). Since the right to be forgotten has effect on search engines operated from computers located outside the EU, I consider this to be a case of extraterritorial jurisdiction (or extraterritorial application of EU law: I am aware of the distinction between applicable law and jurisdiction, but will use “jurisdiction” here as a shorthand to refer to both).

The Court did not limit its holding to claims brought by EU individuals, or to search engines operated under specific domains. An individual seeking to assert a right under the Directive need not be a citizen of an EU Member State, or have any particular connection with the EU, as long as the act of data processing on which his or her claim is based is subject to EU data protection law under Article 4. The Directive states that EU data protection law applies regardless of an individual’s nationality or residence (see Recital 2), and it is widely recognized that it may apply to entities outside the EU.

Thus, it seems that there would be no impediment under EU law, for example, to a Chinese citizen in China who uses a US-based Internet search engine with a subsidiary in the EU asserting the right to be forgotten against the EU subsidiary with regard to results generated by the search engine (note that Article 3(2) of the proposed EU General Data Protection Regulation would limit the possibility of asserting the right to be forgotten by individuals without any connection to the EU, since the application of EU data protection law would be limited to “data subjects residing in the Union”). Since only the US entity running the search engine would have the power to amend the search results, in effect the Chinese individual would be using EU data protection law as a vehicle to bring a claim against the US entity. The judgment therefore potentially applies EU data protection law to the entire Internet, a situation that was not foreseen when the Directive was enacted (as noted by the Court in paragraphs 69-70 of its 2003 Lindqvist judgment). It could lead to forum shopping and “right to be forgotten tourism” by individuals from around the world (much as UK libel laws have lead to criticisms of “libel tourism“).

It is likely that the judgment will be interpreted more restrictively than this. For example, the UK Information Commissioner’s office has announced that it will focus on “concerns linked to clear evidence of damage and distress to individuals” in enforcing the right to be forgotten. However, if one takes the position that Article 16 the Treaty on the Foundation of the European Union (TFEU) has direct effect, then the ability of individual DPAs to limit the judgment to situations where some “damage or distress” has occurred seems legally doubtful (see paragraph 96, where the Court remarked that the right to be forgotten applies regardless of whether inclusion of an individual’s name in search results “causes prejudice”). Google has also recently announced a procedure for individuals to remove their names from search results under certain circumstances, and the way that online services deal with implementation of the judgment will be crucial in determining its territorial scope in practice.

In any event, the Court’s lack of concern with the territorial application of the judgment demonstrates an inward-looking attitude that fails to take into account the global nature of the Internet. It also increases the need for enactment of the proposed Regulation, in order to provide some territorial limits to the right to be forgotten.

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Google Books and the Social (Justice) Contract

In channeling Judge Baer, Judge Chin at long last dropped the other shoe in the judicial effort to bring new information technology uses for copyrighted works fully in to the copyright regime. Congress has been slow to address the challenge of tapping the full copyright social utility/justice potential of these advances and it’s been left to the courts to sort it all out in the context of individual adversarial conflicts. Poignantly, when Jonathan Band asks “What [was] the Authors Guild fighting for?”, he also illustrates the tree-myopic/forest blind nature of the Guild’s position. What the Guild failed to see is that property rights fit into a larger socio-legal system: Yes your neighbor is precluded from trespassing on to your land but your ability to engage in whatever “private” activity strikes your fancy while thereon is limited by the legal system as a whole. Your land is individual private property, not an independent sovereign state.

 

Judge Baer reminded rights holders of this aspect of the social contract and now Judge Chin has made it clear to the Guild that this is not some narrow, eccentric application of copyright social utility. Property rights, including copyrights, exist to advance society, and to state the obvious, information technology has evolved our society. Like all other rights, customs, and expectations, however, whereas some aspects of copyright as previously envisioned fit comfortably into our new configuration others don’t fit at all. And when that ill-fit impedes important social progress modifications must be made, and if necessary, expectations altered.

 

The courts’ reasoning in both Hathitrust and Google Books moves fair use jurisprudence further toward the express consideration of copyright social justice in the application of the doctrine. As Kevin Smith notes, the judges in both cases have seized this opportunity to retrofit fair use, and it seems to me that these decisions push beyond questions of aesthetic and even functional transformation and pave the way for weighing social transformation in assessing the first fair use factor. I have also applied some of the legal conclusions drawn from Bill Graham Archives and other Grateful Dead archive projects to specific copyright social justice needs, for example, that of socially beneficent access to the literature of the Harlem Renaissance. Like some other historically and culturally important works, many of these books enjoy only marginal commercial market value and similar to the information harvested through data mining, “digital fair use” may be the only means by which to return these works to the general public. The social resuscitation of significant works through mass-digitization, and other uses that serve important and otherwise unattainable copyright social objectives, should be considered a purpose that satisfies the first fair use factor.

 

Authors and other copyrights holders would do well to finally get ahead of the information technology curve. The Authors Guild’s mistake was not so much in the effort to preserve what they considered to be their property rights or even in the effort to extract every conceivable drop of revenue out those rights, but rather, in failing to accept that in order for these rights to retain any value they must function as part of a thriving societal system or eventually forfeit the basis for legal recognition. In the analog world, the public’s access to most books remains largely dependent upon the vagaries of the commercial marketplace. Digital information technology has presented the opportunity to compile the world’s books toward the creation of global libraries accessible to every human being on a socially equitable basis. To believe that analog social inequity will be permitted to endure indefinitely in the face of digital information possibilities is simply unrealistic. Keeping in mind that the stimulation, perpetuation, and re-ignition of the cultural expression/dissemination/inspiration combustive cycle is the raison d’etre of copyright will enable authors to embrace digital change and as Gil Scott Heron sang, possibly even direct the change rather than simply be put through it.

 

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Google Books and Author’s Rights

I agree with James Grimmelmann that the Google Books decision is a bit anticlimactic (although the appeal has the potential to add suspense by bringing the case back from the dead). After last October’s decision in Authors Guild v. Hathitrust, the only question really was whether Judge Chin would distinguish HathiTrust on the grounds that the defendants there were nonprofit institutions of higher education, while the defendant here was a commercial entity. To be sure, Judge Chin was not bound by Judge Baer’s analysis that HathiTrust’s use was transformative and did not in any way harm the market for the works at issue,  but these holdings were so consistent with precedent in the Second and Ninth Circuit that it was hard to imagine that Judge Chin would disagree with them. That left the commercial/non-commercial distinction, which has become far less significant in recent years in cases involving transformative uses.

Both judges’ recognition of the enormous social utility of creating a searchable index of books, and the absence of harm to authors caused by such an index (to the contrary, the index benefits authors by making their works more discoverable), highlights the mystery at the heart of these cases: What is the Authors Guild fighting for? Why did it not settle last year, when the publishers dropped their suit against Google? Why did it continue to pursue its litigation against HathiTrust after HathiTrust abandoned its orphan works project?

For some Authors Guild members, it might be about the money. They may believe that there is a pot of gold at the end of the Google rainbow. If the Internet could make instant millionaires (if not billionaires) out of all these kids who express themselves through Internet acronyms, emoticons, and 140 character tweets, then surely authors who spend years writing finely crafted books deserve a share of that fortune.

For others, it seems to be a matter of principle. But exactly what principle? Apparently, that no one should use their works without their permission. While they may agree with fair use in the abstract, they oppose it as applied to their works. The fact that the use is socially beneficial and does not harm them economically is irrelevant. I would amend James’s “three c” formulation with a fourth c: creators should have complete control over copies.

The Authors Guild’s belief in complete control is based more on the Continental “author’s rights” (droit d’auteur) tradition than on the Anglo-American utilitarian tradition. In the author’s rights approach, copyright springs not from statutes but from natural law. The relationship between the author and his work is intimate and indivisible. By contrast, in the Anglo-American system, copyright is not a response to natural law, but rather is a matter of legislative choice directed at incentivizing the creation of works for the benefit of society.  The Anglo-American utilitarian approach in theory provides only as much protection as is necessary to encourage creative activity, while the author’s rights approach provides more robust protections of both economic rights and moral rights such as the right of attribution and integrity.  Historically, the difference between the two approaches translated into longer copyright terms and narrower exceptions in author’s rights jurisdictions.

However, in response to lobbying by rights-holders, Congress has enacted certain features of author’s rights systems — for example, the ever-increasing copyright term. The first U.S. copyright act provided a term of 14 years, renewable for another 14 years, for a total of 28 years. Now, the copyright term matches the European Union’s term of life of the author plus 70 years.

Efforts are underway to import other author’s rights features. The U.S. Copyright Office just released a report recommending that Congress consider adoption of a resale royalty (droit de suite) for visual artists. Under this framework, a visual artist would receive a percentage of the amount paid for a work each time it was resold by a third party.  A resale royalty is in effect a tax on the sale of copyright products and is directly contrary to the long-established first sale doctrine.

The complete control over copyrighted works sought by the Authors Guild and reflected by proposals such a resale royalty are inconsistent with the public interest purpose of our copyright system. Fortunately, Judge Chin, and Judge Baer before him, recognized that the objective of copyright is not to enrich rights-holders, but “to advance the progress of the arts and sciences.”

 

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Search Engine Objectivity

(This is a guest post from Professor Mark R. Patterson of Fordham Law School. As someone who has participated in panels on antitrust with Prof. Patterson, I thought our readers would be interested in his perspective. –Frank Pasquale.)

pattersonM“Search is inherently subjective: it always involves guessing the diverse and unknown intentions of users. Regulators, however, need an objective standard to judge search engines against.”

The two claims above, from an essay by James Grimmelmann, are at the center of the conflict over regulation of search engines. Some argue that Google is a powerful gatekeeper for competing firms’ access to customers, so that it must operate in an objective or neutral manner to preserve a level competitive playing field. Those who make this argument necessarily assume that we can assess objectivity or neutrality in this context. Others, like Grimmelmann, support the first statement above, arguing that there is no objective, neutral means of assessing search results, so that there is no way to regulate search engines.

The European Commission (EC), having investigated Google’s practices and concluded that there are “competition concerns,” is apparently on the pro-regulation side, because it is entertaining proposed commitments from Google to address those concerns. (The U.S. F.T.C. conducted its own investigation and closed it without action, concluding that there was insufficient evidence to support the claim that Google’s practices lacked a legitimate business justification.) Google proposed a first set of commitments to the EC in April, but the Commission received “very negative” feedback from a market test of those commitments, so it asked Google for an improved proposal. Last month, Google proposed a second set of commitments. This new proposal was not put to a market test. Instead, the EC sent private inquiries to the complainants in the case and other market participants. Nevertheless, the proposal was leaked, and it offers much food for thought.

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NSA Penalty Proposed

Readers suggested potential penalties for improper gathering or misuse of surveillance data last month.  As revelations continue, Congressmen have recently proposed some new ideas:

Rep. Mike Fitzpatrick (R-Pa.) proposed legislation . . .  that would cut National Security Agency (NSA) funding if it violates new surveillance rules aimed at preventing broad data collection on millions of people.

Fitzpatrick has also offered language to restrict the term “relevant” when it comes to data collection.  On the one hand, it seems odd for Congress to micromanage a spy agency.  On the other hand, no one has adequately explained how present safeguards keep the integrated Information Sharing Environment from engaging in the harms catalogued here and here. So we’re likely to see many blunt efforts to cut off its ability to collect and analyze data, even if data misuse is really the core problem.

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Glass Houses

Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June.  A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use.  The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used.  It’s not clear, however, that the Glass experience will duplicate the Kodak pattern.  Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.

Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference.  There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye.  Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers.  “My world,” he wrote, “came screeching to a halt.”  In an article appearing a week later, however, Bilton appeared to have calmed down.  He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public.  Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s.  So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence.  Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.

But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today.  Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century.  The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers.  Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy.  That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors.  State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox.  In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.

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“Kicking the Tires” is not “Looking Under the Hood”

Celebrated in the tech press only a week ago, the FTC inaction (and non-explanation of its inaction) with respect to search bias concerns is already starting to curdle. The FT ran a front page headline titled “Europe Takes Tough Stance on Google.” Another story included this striking comment from the EU’s competition chief:

Almunia insists that the Federal Trade Commission decision will be “neither an obstacle [for the European Commission] nor an advantage [for Google]. You can also think, well, this European authority, the commission, has received a gift from the American authorities, given that now every result they will get will be much better than the conclusions of the FTC,” he said with playful confidence. “Google people know very well that they need to provide results and real remedies, not arguments or comparisons with what happened on the other side [of the Atlantic].”

In response to allegations of search bias, Google has essentially said, “Trust us.” And at the end of its investigation into the potential bias, the FTC has essentially said the same. One public interest group has already put in a FOIA request for communications between Google and the FTC. Consumer Watchdog has requested a staff report that was reported to have recommended more robust action. Will Google, an advocate of openness in government and the internet generally, hold firm to its professed principles and commend those requests?
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Google Antitrust: the FTC Folds

Both Eric Goldman and James Grimmelmann have the details on the FTC’s rather extraordinary capitulation today. It is a big win for Google. Still, a few questions remain. I have the following:

1) Commissioner Rosch included this intriguing footnote in his concurrence/dissent:

I . . . have concerns that insofar as Google has monopoly or near-monopoly power in the search advertising market and this power is due in whole or in part to its power over searches generally, nothing in this “settlement” prevents Google from telling “half-truths”–for example, that its gathering of information about the characteristics of a consumer is done solely for the consumer’s benefit, instead of also to maintain a monopoly or near-monopoly position. . . .That is a genuine cause for “strong concern.”

Did Google ever say that it was gathering data purely for consumers’ benefit? That would seem to be an odd representation for a for-profit company to make.
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