Category: Google & Search Engines

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.

0

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.

Read More

“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?
Read More

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.
Read More

3

Stanford Law Review Online: Software Speech

Stanford Law Review

The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.

He concludes:

By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.

Read the full article, Software Speech at the Stanford Law Review Online.

Algo-Driven News with a Human Face

Chistopher Steiner’s new book on algorithms looks interesting. (One nugget: Many companies now use software to analyze the emotional tone of customers calling in for customer service help. Sound emotional, and you’ll get routed to the more empathic call center workers.) It’s part of a growing literature on algorithms both online and off. As we search for reliable information on algorithms, they in turn may well be driving even our awareness and discussion of them. It’s another way technology shapes values, rather than being influenced or constrained by them. Consider a recent feature on an increasingly algorithm driven news industry:

Google News-powered results, Google says, are viewed by about 1 billion unique users a week. . . . Which translates, for news outlets overall, to more than 4 billion clicks each month: 1 billion from Google News itself and an additional 3 billion from web search. . . .

Google News’s head of engineering[] summed up the challenge: “How do I take a story that has 20,000 articles, potentially, and showcase all of its variety and breadth to the user?” . . . . Google [is] symbolic of a broader transition: producers’ own grudging acceptance of a media environment in which they are no longer the primary distributors of their own work. [It] suggests an ecosystem that will find producers and amplifiers working collaboratively, rather than competitively. And working, intentionally or not, toward the earnest end that Schmidt expressed two years ago: “the survival of high-quality journalism.”

Read More

0

SOPA, PIPA and some truth about activism

As folks start to claim they saved the Internet and rally for alleged ways to keep the Internet open for all, I want to call out something Rep. Issa said at Stanford in April. Step one, and to me the but-for moment, in stopping SOPA and PIPA was the security and CS community speaking (which was rare) about just how dangerous (“A potpourri of dumb things” – Issa at around 8:15) the bills were. Without that the activism probably could never have gotten in place. Furthermore, as I noted elsewhere, science can shift. Science is, by definition, amoral. If you build it, it will work. So expect the copyright industry to demand new things. Expect them to hire and fund studies about how to get what they want without going using “A potpourri of dumb things.” And note that Google’s recent shift in approach regarding links and alleged pirate sites shows that things change.

This is not an apolitical moment. It is deeply political, but pretends that it is not about a power shift. When Internet and tech companies swear they are there for you, be skeptical. In some senses they are. Many folks I know at Google really are interested in serving users. Many are also scientists who will pursue, as they should, the truth of what is possible. The current bus-stop tour by Reddit’s co-founder, Alexis Ohanian is political. Per the Washington Post, for him, “[T]he key issue is getting Internet openness on the minds and into the talking points of politicians in this election.”

What does openness mean? What are the politics of openness? Why do Facebook, Google, Reddit want openness? South by Southwest looks like it may have panel on disrupting DC. The description reads like an evangelic rally (a good tip that thought is replaced by faith). But to its big credit (except for saying the questions will be answered), the panel looks at some decent issues:

1. The Industrial Revolution brought about a political realignment that created the existing party system. Can the Internet do the same?
2. Beyond “openness,” what are the essential characteristics that define the Internet’s political identity? Market oriented or socially conscious? Libertarian or progressive? (Or all of the above?)
3. Politically, does the Internet most resemble an interest group (like big business or labor unions), a movement, or something we haven’t seen before?
4. Is Internet culture weakening partisanship — or making it worse?
5. Technology drives growth, but some say it also kills jobs. How do we make sure that the benefits of the Internet are widespread? Is there a consistent political viewpoint here among Internet activists, or does this break down along typical political lines?

I doubt one panel can tackle all these questions. Much will depend on the panelists and whether the panel is really open in that it has voices other than those who all agree. Nonetheless, one thing that is missing is a deeper look at the power structures and history that inform the issue. For example, the idea of realigning parties still relies on parties. And, there is an essentialism to Internet identity that is ironic at best and willfully blind and lacking irony at worst.

Have I abandoned my Google brothers and sisters? Oh perhaps, but I don’t think so. These questions were ones I raised while there. Some disliked them. Some took them seriously. The people I respected and loved the most pushed me to dig into these points. Like society, Google has many people with many views and agendas. That’s the point. With all companies and all people asserting truth, administer several grains of salt, reflect, (maybe add some lime and tequila first). For those wishing a good book on the problems with saying we know where we are going, check Professor Wendy Brown’s work, especially Politics Out of History.

0

Google Says “No, No” to Mr. or Ms. Pirate; What About Hate Speech?

Fred von Lohmann posted that Google has changed its algorithm. Now “it’ll start generally downranking sites that receive a high volume of copyright infringement notices from copyright holders.” The Verge reports that:

because its existing copyright infringement reporting system generates a massive amount of data about which sites are most frequently reported — the company received and processed over 4.3 million URL removal requests in the past 30 days alone, more than all of 2009 combined. Importantly, Google says the search tweaks will not remove sites from search results entirely, just rank them lower in listings. Removal of a listing will still require a formal request under the existing copyright infringement reporting system — and Google is quick to point out that those unfairly targeted can still file counter-notices to get their content reinstated into search listings.

The data-driven basis makes sense to me. So what other areas could be monitored and adjusted? I disagree with the idea that search engines should take on policing roles for certain speech that Danielle Citron and others have urged. But this shift may open the door to more arguments for Google to be a gatekeeper and policer of content. Assuming enough data is available, Google or any data-driven service, could make decisions to include or exclude entries (or shift ranking). Those moves already happen. But the difficult question will now be why or why not act on some issues but not others. James Grimmelman has a work in progress on search and speech that gets into this question. I believe the algorithm issues still control. Nonetheless, by nodding to the copyright industry, Google may be opening the door to further calls to be the Internet’s gatekeeper. Of course, if it does that, others will attack Google for doing just that from competition and other angles.

Automated Arrangement of Information: Speech, Conduct, and Power

Tim Wu’s opinion piece on speech and computers has attracted a lot of attention. Wu’s position is a useful counterpoint to Eugene Volokh’s sweeping claims about 1st Amendment protection for automated arrangements of information. However, neither Wu nor Volokh can cut the Gordian knot of digital freedom of expression with maxims like “search is speech” or “computers can’t have free speech rights.” Any court that respects extant doctrine, and the normative complexity of the new speech environment, will need to take nuanced positions on a case-by-case basis.

Digital Opinions

Wu states that “The argument that machines speak was first made in the context of Internet search,” pointing to cases like Langdon v. Google, Kinderstart, and SearchKing. In each scenario, Google successfully argued to a federal district court that it could not be liable in tort for faulty or misleading results 1) because it “spoke” the offending arrangement of information and 2) the arrangement was Google’s “opinion,” and could not be proven factually wrong (a sine qua non for liability).
Read More

Search as Speech: Two Scenarios

Several privacy and antitrust complaints are now menacing Google. After gamely parrying these challenges, the search giant has now wheeled out its nuclear option: a First Amendment argument against any regulation of what appears in unpaid (aka “organic”) search results. A recent Google white paper by Eugene Volokh and Donald Falk has buttressed Eric Goldman‘s and Christopher Yoo‘s rationales for unfettered discretion in the exercise of search engines’ editorial judgment.

Volokh/Falk is the latest in a long string of Google filings describing search results as speech. It’s significant well beyond the search engine industry. If Google succeeds here, just about any information age company will start to make its selection and coordination of offerings “searchy” and thus “speechy” enough to avoid regulation.

Leading articles on the proper limits of the First Amendment include Fred Schauer’s The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience and Robert Post’s Recuperating First Amendment Doctrine. In Federal Search Commission?, Oren Bracha and I applied their arguments (among others) in the new technological contexts created by search engines (pages 1188-1201). I have also examined expressive dimensions of search in other work, in 2006, 2007, and 2008.

None of those prior efforts satisfied me as definitive. I wanted to write on the topic for years, but I couldn’t formulate a more general theory of search as speech. I now recognize the reason for my writer’s block: I was trying to impose a “one-size-fits-all” approach on multifarious phenomena. As Michael Carroll has shown, there are “uniformity costs” whenever we try to force a vast, sprawling array of human activities into Procrustean legal boxes. Those costs would be very high if courts were to accept the Volokh/Falk approach with respect to all the varied interactions between searchers and search engines. With that in mind, here are a few scenarios (or “test suites,” as Volokh might put it) to test the Volokh/Falk submission.
Read More