Is Web 2.0 an Engine of Inequality?

According to a Stephen Carr review of Nicholas Carr's new book comparing the economic impact of the rise of the electrical grid and the rise of the internet, it may well be:

[Carr] describes a world in which a handful of lucky and brilliant entrepreneurs uses the World Wide Computer to tap humanity's smarts and creativity for free, à la YouTube and Wikipedia, while putting legions of information professionals out of work. If that's not dreary enough, he predicts that companies and governments will be able to harvest data from these networked computers to track our behavior and, ultimately, to control us.

I have a paper forthcoming on how some regulatory moves now could help assure that the "leveling effect" of companies like Google persistently helps society generally--rather than just transferring wealth from creators to new intermediaries. (I'll get it on SSRN soon, I promise!) For now, let me recommend blogs like C.E. Petit's, which has a good handle on the real economics of creative industries. I also think works like Soren Mork Peterson's and Trebor Scholz's ask interesting questions about the blurring of work and play online, though I don't necessarily come to all of their conclusions. Here's Scholz:

Jeff Howe of Wired introduced the term “crowdsourcing,” . . . [which] means that a company outsources a job usually executed by an employee to a large, undefined group of people through an open call over the Internet. This group receives little compensation or no pay at all.

[Don Tapscott's book Wikinomics] describes with single–minded focus how to squeeze profits out of peer–to–peer technologies and even refers to the Katrina People Finder project. When interpreting the new conditions for production and consumption online, his sole mission is a socially friction–free update of [old] power dynamics. He discovers and celebrates how today, perhaps more than ever, fewer and fewer people can become richer and richer by using the very many who earn less and less.

Though I have a somewhat sunnier view of Wikinomics, I see Scholz's point. People may laugh when critical scholars ask whether social networking sites are exploiting them. But when network effects are powerful enough, the analogy of a social network to a "company town" is not far-fetched. Given that dynamic, policymakers need to consider how to give users real options with genuine data portability and other rights.

Posted by Frank Pasquale at 01:39 PM | Comments (1) | TrackBack

Facebook Banishment and Due Process

Recently, I was talking with David Lat, author of the blog Above the Law, and he was complaining about being banished from Facebook. David was an active user of Facebook, and he suddenly and inexplicably found himself banned from the site. Facebook didn't supply him with any reason.

I found the issue quite intriguing, and David said I could blog about it. In particular, what makes this issue of interest to me is how it applies more generally to Web 2.0 applications. With Web 2.0, people invest a lot of time creating profiles, uploading information, and so on. And they start to depend upon these applications in their lives.

David also said he has a lot of important information on his Facebook profile. He uses it as a way to communicate with people, and he uses it to help him gather information for use in his blogging. So being kicked off Facebook is a big deal to David. It can impact his job. It can also impact his friendships and professional relationships. For example, David told me he received emails from several friends who wondered where he had gone. They thought David might be ignoring them or might no longer be their "friend" on Facebook.

As more of our lives become dependent on Web 2.0 technologies, should we have some sort of rights or consumer protection? Is Facebook the digital equivalent to the company town?

David checked Facebook's website, which has a FAQ about disabled accounts. Facebook states:

Your account was disabled because you violated Facebook’s Terms of Use, to which you agreed when you first registered for an account on the site. Accounts can either be disabled for repeat offenses or for one, particularly egregious violation.

Facebook does not allow users to register with fake names, to impersonate any person or entity, or to falsely state or otherwise misrepresent themselves or their affiliations.

We do not allow users to send unsolicited or harassing messages to people they don’t know, and we remove posts that advertise a product, service, website, or opportunity.

Our Code of Conduct outlines the types of content we do not allow on the site. This includes any obscene, pornographic, or sexually explicit photos, as well as any photos that depict graphic violence. We also remove content, photo or written, that threatens, intimidates, harasses, or brings unwanted attention or embarrassment to an individual or group of people.

David insisted that he didn't do any of the things above. Can he see the allegedly offending content that got him banned? Facebook's answer in the FAQ comes from the pen of Franz Kafka:

Unfortunately, for technical and security reasons, Facebook cannot provide you with a description or copy of the removed content.

One blogger writes :

Facebook is shutting down accounts of users who are exhibiting any behavior it finds remotely suspicious. As paradoxical as it sounds, "suspicious" often means just using the site too much! Sometimes they warn people and give them the chance to change their behavior, and sometimes the account termination is sudden and permanent. Most of the time the disabled accounts will be turned back on, whether automatically after a cool-down period, or after prostrating yourself to the FB authorities. But sometimes they'll lock it up and throw away the key.

Facebook remains intentionally vague about what "bad behavior" looks like, and so it's no wonder that people get confused, angry or despondent when they get the ACCOUNT DISABLED message.

Apparently, you can email Facebook to "appeal" being kicked off, but there are no guarantees that you'll be given any sort of reason, or hearing, or fair adjudication process. For some banned users, Facebook will inform them of their crime. David said he emailed Facebook and that he only received an email confirming receipt of his query. Since then, he hasn't heard anything more from Facebook.

But Facebook doesn't have any obligation to tell David anything. Facebook's Terms of Use provide:

The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site or through any Platform Application and/or prohibit you from using or accessing the Service or the Site or any Platform Application (or any portion, aspect or feature of the Service or the Site or any Platform Application) for any reason, or no reason, at any time in its sole discretion, with or without notice, including if it believes that you are under 13, or under 18 and not in high school or college.

In other words, you exist on Facebook at the whim of Facebook. The Facebook dieties can zap your existence for reasons even more frivolous than those of the Greek gods. Facebook can banish you because you're wearing a blue T-shirt in your photo, or because it selected you at random, or because you named your blog Above the Law rather than Below the Law.

On the one hand, this rule seems uncontroversial. After all, it is Facebook's website. They own their site, and they have the right to say who gets to use it and who doesn't.

But on the other hand, people put a lot of labor and work into their profiles on the site. It takes time and effort to build a network of friends, to upload data, to write and create one's profile. Locking people out of this seizes all their work from them. It's like your employer locking you out of your office and not letting you take your things. Perhaps at the very least banished people should be able to reclaim the content of their profiles. But what about all their "friends" on the network? People spend a lot of time building connections, and they can't readily transplant their entire network of friends elsewhere.

Suppose Facebook didn't have any kind of system for appeal when a person got banished. Should the law force it to have some kind of appeal system? One might argue that perhaps the market will work it out -- if people want an appeal system, then they'll choose the social network website or Web 2.0 application that has one. But in many contexts (though not all contexts) people rarely think about the procedures companies have for when things go wrong. This is often not a consideration in making a choice, so it might not generate enough competition in this regard.

As more people use Web 2.0 applications, they are increasingly encouraged to invest an incredible amount of time and effort in them. Facebook wants and encourages people to put up information, to build one's network, and so on. Given people's investment in these applications, should they be granted any kind of rights or protections in using them?

UPDATE: David Lat finally heard back from Facebook. He was banished because he "posted parts of a user's profile to another website, which is a violation of Facebook's Terms of Use." Facebook reactivated David's account, so the story has a happy ending. All's well with the world.

Posted by Daniel J. Solove at 12:55 AM | Comments (15) | TrackBack

The Future of Reputation -- Now Online for Free!

I'm very happy to announce that my publisher is allowing me to post a copy of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet free online. Of course, I'd love it if you bought a copy, but if I can't convince you to buy it, then I hope you'll at least read it for free online. There really is a free lunch after all! And if you read the book and don't like it, well . . . you get what you pay for.

I think that it is great that Yale University Press is allowing me to do this. I hope more publishers decide to let their authors do this in the future -- especially academic presses, whose mission is not just to make a profit but to help spread ideas.

The book is licensed under a Creative Commons license -- it can be used for non-commercial uses.

To download the full-text of the book, click here.

Posted by Daniel J. Solove at 01:19 AM | Comments (2) | TrackBack

Could Personalized Search Ruin Your Life?

Imagine you're applying for a job and want to be sure to give the right impression. A diligent self-googler, you think you know everything there is out there on the web about you. Nothing sticks out in the first 15 or so pages of results. But there is someone with name identical to yours who's got a terrible reputation (or, to make this more concrete, just imagine your name is Tucker Max). And when HR does its background check on you, that's the first result it sees. You're never given a reason for being turned down for the job--just a brief form letter.

This scenario may result from what is otherwise one of the most promising trends on the web--personalized search. As you use a search engine more and more, it tends to translate your behavior into a database of usual intentions. That can make searches a lot more efficient for you as a searcher--but creates lots of uncertainty once you are the searched.

I worry a bit about a world where pervasive tailoring of search results means that few of us know what types of information others are receiving in response to particular search terms. What should we do about the resulting information asymmetries? I was surprised to find that there are over 600 papers on SSRN with the term "information asymmetry" in the title, and I'm sure some of these have valuable theoretical insights on the issue (which appears to be at the heart of important legal controversies like those arising out of Twombly). More practically speaking, Finland has set forth some practices for dealing with that eventuality, and I've suggested others (SSRN copy available here).

None of this is to dispute the obvious helfpulness of personalized search in daily life. For example, Google Co-op is a "platform which enables you to use your expertise to help other users find information." According to the FAQs, "When you subscribe to someone in the Google Co-op directory, all of that provider's labels and subscribed links will be added to your Google search results for relevant searches. The labels and links provide new and useful ways to refine your searches." I think this is a welcome innovation at what I've previously described as a "Black Box" information source.

A new book by Samir Chopra and Scott Dexter helps explain the importance of such openness. As Chopra argues,

Software affects our expressive potential in two ways. First, it allows us to express algorithmic ideas as programs written, typically, in high-level programming languages. . . . Second, as executing code, software constrains the ways in which we may interact with a computing device. The grammar of this language of interaction is the set of constraints that my software places on me — the structure within which I must operate if it is to understand me.

[W]e only modify our interactions with a computer if we can modify the code that it runs: the only solution to a frustrating interaction with an inflexible interface is to change the interface. But if the software running on a machine is unavailable for inspection and modification, the expressiveness of our language of interaction is severely restricted.

The problem, I suppose, is when one party's freedom to find information gives it a manifestly unfair or harmful picture of another person or entity. Perhaps the concerns I have can be adequately addressed in employment law (ala the Finnish model). I nevertheless think that they have to be part of an overall "search engine law," which reciprocally balances the benefits government gives to these entities with public responsibilities.

Posted by Frank Pasquale at 09:59 AM | Comments (8) | TrackBack

Who Will Pay for the Content?

Mark Anderson has a concise overview of the big issues in search engine law up at the IEEE Spectrum. Here's a taste:

[James] Grimmelmann writes that four broad areas of law—intellectual property, free speech, antitrust, and the openness of search algorithms—are still very much up for grabs in Internet search. And the next few years could see rulings, settlements, or legislation that will put some of the key legal cornerstones in place.

“The biggest undefined area is how far fair use extends in copyright,” Grimmelmann says, referring to the doctrine that allows for use of copyrighted materials for the purposes of education, public interest, or parody. How broadly Google or Yahoo or any of their peers can claim fair use to index Web sites, databases, books, and other copyrighted content, he says, is the essential issue. And the pending lawsuits filed against Google’s new Book Search engine are where Grimmelmann says the biggest legal aftershocks could originate.

My gut feeling is that we're going to see a lot of settlements between Google and the big players here. (I wonder what the Predictocracy foresees?). On the other hand, another analyst (James V. DeLong) thinks it's in Google's interests to win its IP battles outright:

Several ways of financing the creation and distribution of content exist. Consumers can pay directly, either per ticket (a movie) or for a subscription (XM Radio). Ads can be sold, either combined with a payment (magazines) or stand-alone (broadcast TV). Or a distribution company can sell raw access to the network, and let the users worry about the content (telephone). And of course there are hybrids, where basic service is sold cheaply, and premium offerings bundled on top of it (cell phones, plus ringtones). . . . There is nothing wrong with advertising-based systems, but they should not be allowed to crowd out other forms of financing, in which the consumers of content are actually the customers (and thus the kings).

And this is where things get sticky, because for any other system to exist, defensible property rights must be restored to the system. . . .The concern about Google is based on a fear that it does not share this concern with restoring the viability of business models other than those based on advertising. Indeed, the concern goes further - that Google understands perfectly that the lack of property-rights based business models enhances its market power as the alpha dog of the ad biz, and that it will exercise its political and PR clout to prevent the development of alternatives. Hence its support for the academic communitarians, its hostility to proprietary software, its endorsement of net neutrality, its foot-dragging on YouTube filtering, its development of Android.

That's a fascinating "free markets first" perspective on the problems raised by Google. But my sense is that you will eventually see Google itself becoming the enforcer, broker, and all-around consigliere that will both revitalize property-based models and reinforce the stratification in access to knowledge they can promote. I'll be discussing these ideas more at NYU this Friday, and will try to blog about the talk (and comments) that afternoon.

Hat Tip: Siva.

Posted by Frank Pasquale at 09:09 AM | Comments (0) | TrackBack

Sources of Google's Success

What's the source of today's cornucopia of exciting technology? One storyline is that brave entrepreneurs are doing battle with torpid government bureaucrats. When we think about a company like a Google, that turns out to be a naive point of view.

New Yorker media reporter Ken Auletta notes that Google's lobbying operation in DC has grown from 1 person in 2006 to about 30 today, with many DC heavyweights in tow. They include

Robert Boorstin, a former speechwriter for President Clinton; Johanna Shelton, a former senior counsel to Representative John Dingell, chairman of the House Energy and Commerce Committee; and Pablo Chavez, a former chief counsel to John McCain. In October, 2006, the company established its own PAC, called NETPAC, and since then it has hired three outside firms to lobby on its behalf: the mostly Democratic Podesta Group; King & Spalding, where Google works with former Senators Connie Mack and Dan Coats, both Republicans; and Brownstein Hyatt Farber Schreck, which hired Makan Delrahim, the former Deputy Assistant Attorney General in the Bush Justice Department’s Antitrust Division.

Auletta sees this as a major break from the company's past, implying that Google became dominant largely because it "scanned and indexed the internet" better than its competitors. However, the more I study the search market, the more I see fortuitous legal and regulatory decisions paving the way to Google's success. Perhaps its technology in search was and is better than any search engine competitor. But its uniquely dominant place in the internet ecology could have been snuffed out at many points over the past 10 years.

As Auletta's article notes, various entities are trying to bring Google to heel--including telcos, cable companies, content providers, search engine optimizers, trademark owners, and consumer advocates. In traditional information law, claims under trademark, defamation, and copyright law might pose serious worries for the company. However, communications and intellectual property law provide safe harbors that can trump legal claims sounding in each of these other areas. Immunities from tort liability provided under the Communications Decency Act (“CDA”) were originally intended for carriers regulated by the Federal Communications Commission, but have been extended by courts to cover search engines

The FCC, while often captured, can at least balance out the largesse ladled out to carriers like telcos and cable companies with rules that require, say, universal service, neutral treatment of clients, and transparency about corporate practices. But where is the Federal Search Commission? Google has advocated for "net neutrality" for carriers, but what of its own obligations as a dominant player?

In an upcoming article, I argue that the safe harbors that shield dominant search engines from liability also suggest some basic forms of responsibility for the results they present. Just as Google fears an unfairly tiered online world (where Verizon can partner with Yahoo to provide Yahoo searches ten times faster than Google ones), they should be required to provide access to their archives and indices in a nondiscriminatory manner. If Google wants carriers to disclose their traffic management tactics, they should submit to regulation that bans stealth marketing and reliably verifies the absence of the practice. Finally, search engines’ concern about the applications and content disadvantaged by carrier fast-tracking should lead them to provide annotation remedies to indexed sites whose trademarks have been unfairly occluded by the search process. Fair competition online demands common commercial ethics for both dominant search engines and dominant carriers.

Can this be a realistic policy agenda in a Washington smitten with Silicon Valley entrepreneurs? I'll be closely watching the work of Siva Vaidhyanathan (on the academic side) and Jeff Chester (on the advocacy side). As Auletta reports,

Jeff Chester, the executive director of the nonprofit Center for Digital Democracy . . . runs a two-person organization that has an annual budget of two hundred thousand dollars, but his influence is surprisingly broad. . . .Chester urged Senator Kohl to hold a one-day hearing on the issue, and pushed for the F.T.C. to broaden its examination of Google to include privacy; in November, the agency held a desultory town-hall meeting to explore the issue.

I'm glad people like Chester are raising the salience of the issues here. If regulation were to guarantee stakeholders in search results more rights, this would not necessarily be an example of "big gub-mint" intruding on the magic of a "free market." Rather, it might just amount to a tailored effort to adjust rules that have already given Google so much power and influence to better reflect what Greg Lastowka has called the "public's indexical interest."

Posted by Frank Pasquale at 09:13 AM | Comments (1) | TrackBack

Disparate Impact in the Blogosphere

Danielle Citron gave a compelling presentation at the recent Yale Symposium on Reputation in Cyberspace exploring how group dynamics can deter women from participating online. The Yale Pocket Part has done a symposium on online harassment. Citron moved the discussion forward by analyzing social psychological dynamics in online life and describing how much more likely women are to be threatened by the worst type of comments:

Threats, lies, and the disclosure of private facts discourage women from blogging in their own names. Women lose opportunities to establish online identities that would enhance their careers and attract clients. Destructive online groups prevent the Web from becoming an inclusive environment. Disappointingly, this phenomenon throws us back to the nineteenth century, when women wrote under gender-neutral pseudonyms to avoid discrimination.

Web 2.0 technologies provide all of the accelerants of mob behavior but very few of its inhibitors. . . . Individuals who feel anonymous do and say things online that they would never seriously entertain doing and saying offline because they sense that their conduct will have no consequences. A site operator’s decision to keep up damaging posts encourages destructive group behavior. Online mobs also have little reason to fear that their victims will retaliate against them.

The AutoAdmit lawsuit is a first step toward addressing the last concern. Making internet intermediaries more responsible may be another.

Given that the Yale conference had been criticized for failing to adequately include women's voices, Citron's presentation was especially important. While cyberspace may be liberating for many, the same prejudices that permeate real life can infect the online world. And as more of our life gets conducted online, combating these prejudices is going to need to become not merely a legal, but a cultural project. That issue has a long history, and has sparked many valuable discussions. Citron has already done very important work on making computer systems more accountable, and I look forward to reading her contributions in this area.

Posted by Frank Pasquale at 06:31 PM | Comments (7) | TrackBack

Conditions for the Digital Library of Alexandria

I have been in the middle of a major rethink of search engines' efforts to digitize books. As it started I enthusiastically celebrated their potential to tame information overload. But major research librarians are now questioning search engines' practices here:

Several major research libraries have rebuffed offers from Google and Microsoft to scan their books into computer databases, saying they are put off by restrictions these companies want to place on the new digital collections. The research libraries, including a large consortium in the Boston area, are instead signing on with the Open Content Alliance [OCA], a nonprofit effort aimed at making their materials broadly available.

As the article notes, "many in the academic and nonprofit world are intent on pursuing a vision of the Web as a global repository of knowledge that is free of business interests or restrictions."

As noble as I think this project is, I doubt it can ultimately compete with the monetary brawn of a Google. And why should delicate old books get scanned 3 or 4 times by duplicative efforts of Google, Microsoft, the OCA, and who knows what other private competitor? I also worry that a fragmented archiving system might create a library of Babel. So what is to be done?

My new position is: leverage current copyright challenges to Google's book search program to guarantee that it serves the public interest. Here's how that might work:

Google’s plans to scan and index hundreds of thousands of copyrighted books have provoked extraordinary public controversy and private litigation. This project aims to archive and provide text-based indexing for an enormous number of books. Google’s scanning of copyrighted books is prima facie infringement, but Google is presently asserting a fair use defense. The debate has largely centered on the rival property rights of Google and the owners of the copyrights of the books it would scan and edit.

Given Google’s alliance with some of the leading libraries in the world, journalistic narratives have largely portrayed the Google Book Search project as an untrammeled advance in public access to knowledge. However, other libraries are beginning to question the restrictive terms of the contracts that Google strikes when it agrees to scan and create a digital database of a library’s books. While each library is guaranteed access to the books it agrees to have scanned, it is not guaranteed access to the entire index of scanned works.

Those restrictive terms foreshadow potential future restrictions on and tiering of their book search services. Well-funded libraries may pay a premium to gain access to all sources; lesser institutions may be left to scrounge among digital scraps. If permitted to become prevalent, such tiered access to information would threaten to rigidify and reinforce existing inequalities in access to knowledge, and life chances. Such tiering divides society into two groups–those who can afford to access the information, and those who cannot. To the extent that the latter group’s relative poverty is not its own fault, information tiering inequitably subjects it to yet another disadvantage, whereby others’ wealth can be leveraged into status, educational, or occupational advantage.

Given the diciness of the fair use case for projects like Google Book Search, courts should condition the legality of such archiving of copyrighted content on universal access to the contents of the resulting database. Landmark cases like Sony v. Universal have set a precedent for taking such broad public interests into account in the course of copyright litigation. Given the importance of “commerciality” in the first of the four fair use factors, suspicion of tiered access could also be figured into that prong of the test. A more ambitious (if less likely) solution would require Congress to set such terms in a legislative settlement of the issue.

However the matter is ultimately settled, any outcome in favor of dominant categorizers should be conditioned on their maintaining open access to search results. Such a condition would help assure that the type of “tiered access” common for legal resources would not further pervade the networked world. If Google’s proposed extension of the fair use defense succeeds, such a holding should be limited to current versions of the services that conduce to a common informational infrastructure. To the extent it or other search engines limit access to parts of their index, their public-spirited defenses of their archiving and indexing projects are suspect.

PS: For more thoughts on the future of digital archiving, see Diane Leenheer Zimmerman's Can Our Culture Be Saved?

PPS: This post is part of a series, which starts here.

Photo Credit: ekornblut, Wall of Library of Alexandria.

Posted by Frank Pasquale at 08:11 PM | Comments (3) | TrackBack

Holding Google to its Own Standards

There has been a lot of news coverage of Google's "openness initiatives" over the past few weeks. The "Open Handset Alliance" promises to break the carriers' appliancization of cell phones. OpenSocial is designed to put its imprint on social-networking generally, while allowing mass participation in creating apps for it:

OpenSocial[] is an appeal to software developers and Web sites to cooperate in adopting a single set of software standards for the little software widgets that can add a social-networking layer to all Web sites. Agreement on a standard would save users from the aggravation of joining multiple networks and save developers from the aggravation of writing code that works only with specific sites. Unlike Facebook’s programming requirements, Google’s use nonproprietary programming languages.

Both these initiatives are great. But somebody has to keep asking the question: what's in it for Google? Fake Steve Jobs suggests one answer:

[D]espite their big brains and IQ tests, they [got] totally blindsided by Facebook and have to gin up this ridiculous OpenSocial thing. Just like with this phone thing, they round up all the losers in that social networking space to form some . . . alliance. You know how it looks? It looks weak. Companies don't form alliances and consortia when they're winning. Also, whenever you see companies start talking about being "open," it means they're [not doing well]. You think Google will be forming an OpenSearch alliance any time soon, to help also-rans in search get a share of the spoils? Me neither.

Which led me to think--what would an open search alliance look like? Well, the more Google knows about users, the more targeted their ads and services will become. That self-reinforcing advantage helps them on both sides of a two-sided market; they offer advertisers richer data on potential customers, and target ads better to users.

If those advantages tend to lock advertisers and consumers in to using already favored search engines, perhaps an Open Search Alliance would make search data portable--just as an open social networking standard would let you download your profile and social graph into some portable file. As personalized search tailors services to users, your past queries provide a treasure trove of data that can be used to tweak responses to future searches. The basic question is: who ought to control the data that users and search engines mutually generate? All your queries have been training Google to give you what you want--shouldn't you be able to use that data to your advantage if you switch search engines?

I can just imagine the howls of protest--"Lock-in is the whole Web 2.0 business model! Give 'em stuff for free, use their UGC, and monetize the eyeballs!" But my hope is that (user sunk costs + lock-in) becomes a much less compelling business model over the coming decade. Although optimism on "innovation markets" has largely anesthetized antitrust authorities looking at these situations, we should reconsider whether encouraging big players to compete to capture a market produces more gains and innovation than rules that reduce the cost of exit from dominant players. (And frankly, even if it doesn't, we still might prefer the latter situation over one where "clash of the titans" struggles for platform dominance and vertical integration undermine the diversity of online life.)

If we don't see those type of rules, just remember that every bit of time you invest in Facebook apps, Google searches, etc. is one more step toward locking yourself in. Expect much noisier ads and much more invasive privacy practices as the companies grow in strength and recognize how difficult it would be for you to quit. And don't expect that, when you finally reach a breaking point and want to quit, all 100 or so of your friends will follow you over to another social network--or that the new seach engine you choose provides services remotely as good as a Google you've trained as well as a voice-recognition program to recognize your idiosyncratic preferences and tastes.

(This was cross-posted at Madisonian.net. I plan on doing a series on Google this week arguing that the standards it would impose on social networking sites, cell phone carriers, and other major players in our convergence culture should also be imposed on Google itself.)

Posted by Frank Pasquale at 11:40 AM | Comments (1) | TrackBack

Shaming Search Engines

There was a striking confrontation between the head of Yahoo and the family of a Chinese dissident in Congress today:

Two top Yahoo officials defended their company's role in the jailing of a Chinese journalist but ran into withering criticism from lawmakers who accused them of complicity with an oppressive communist regime. . . . House Foreign Affairs Committee Chairman Tom Lantos . . . . angrily urged Yahoo Chief Executive Jerry Yang and General Counsel Michael Callahan to apologize to journalist Shi Tao's mother, who was sitting directly behind them.

What can be done about such brutal censorship? Jennifer Chandler's compelling article on internet intermediaries covers 2006 debates over the Global Online Freedom Act, which would have addressed such censorship.

According to Chandler,

Yahoo!, Microsoft, and Google have recently come under intense criticism for their apparent cooperation with the Chinese government’s online censorship and surveillance policies. This concern has culminated in the proposed Global Online Freedom Act of 2006 (“GOFA”), which was introduced in the House of Representatives on February 16, 2006. On June 22, 2006, a substitute version of GOFA (“GOFA (June)”) was introduced in the Subcommittee on Africa, Global Human Rights and International Operations.

The original version of GOFA required U.S. content hosting and search engine businesses operating in “Internet-restricting” countries not to comply with those countries’ filtering requirements. The substitute version has significantly loosened these requirements, but continues to instruct U.S. businesses to behave in a manner that may contravene foreign laws.

***

Under § 202 of the original version of GOFA, businesses that provide search engine services would be prohibited from altering the operation of the search engine with respect to “protected filter terms” at the request of the governments of “designate[d] Internet-restricting countries,” or in a manner that would be likely to produce different search results for users accessing the service from within the designated countries. This requirement was removed from GOFA (June). Under § 203 of GOFA (June), businesses providing search engine services would be required to report to a newly-created Office of Global Internet Freedom the terms and requirements for filtering that are specified to them by the governments of designated countries.

***

One of the problems with GOFA is that it would penalize U.S. businesses for doing in a country such as China something that is either legal there or required by Chinese law. Although the June version substantially softens GOFA, removing many of the provisions that would most likely require U.S. businesses to contravene foreign laws, it retains the prohibition of blocking “United States-supported Web site[s]” or “United States-supported content,” which includes material created by the U.S. Government and government-supported international broadcasting entities. Contravention of this provision exposes U.S. businesses to both civil and criminal penalties.

These are all difficult issues, and I am concerned that a bill like GOFA would have unintended consequences. For example, periodic "freezes" of Google by the Chinese government (in retaliation for its abiding by GOFA) could just lead Baidu to gain a greater market share there--and it would not be bound by any US law. I also fear that our Congress's interest in granting retroactive immunity to phone companies may just extend to the search sphere. Finally, given the U.S.'s huge and ever-growing debt to China, it's hard to imagine us imposing trade sanctions with much teeth. Given these challenges, we may just be scroogled. Lantos's shaming sanctions may be the most pressure we can collectively bring to bear on search giants.

Posted by Frank Pasquale at 04:57 PM | Comments (1) | TrackBack

Not Everyone Wants to Play Google's Library Game

It seems like Google is unstoppable. Frank's recent post about Google and his talk on the subject reminds that Google is everywhere. Dan's new book is necessary in part because of Google and other search engines. Google has even popped up offline. Rumors of taking on phone technology abound. And as many know Google has set its sights on books too. As Frank noted Siva Vaidhyanathan among others has questioned Google's control of information. Vaidhyanathan's paper, The Googlization of Everything and. the Future of Copyright, which appeared in the U.C. Davis Law Review, offers that in the book realm Google's actions may trigger a large step backwards because of the nature of fair use.

As Vaidhyanathan admits he only highlights the danger of one court or Congress listening to copyright corporations and restricting the potential of information sharing that the Internet and the book project offers. That alone merits consideration. I do think, however, the paper makes some overstatements about search issues and "stable texts like books." He argues that Google's search in books lacks neutrality, and its utility alone will not save it because:

It is hardly an effective or comprehensive research tool. It generates too many ridiculous results for simple searches. It cannot screen out bad results very well. And Google offers no simple information-seeking training to its customers. Searching the text of books is rarely a better way to search than searching among books. Books are discreet documents that operate with internal cohesion more than external linkages.

This idea seems to suggest that those who use Westlaw or Lexis cannot find material well. I think Google supports some level of Boolean searches and Google could easily add subject matter indices to mimic library catalogs. In short, focusing on small issues such as improving the utility of the search detracts from the bigger point. Google can fix or enhance the searches. The improvements will not necessarily stop one of the key points made in the paper. True believer arrogance in the face of laws that see the world in quite a different way can lead to bigger problems. Here Google's contract which gives libraries an electronic copy in return for participation runs into copyright law for the law is not sure what to do with such copying other than say it is not allowed.

Thus even though some libraries reject Google's onerous terms, Google's acts may foment a poorly written ruling or law that hinders other movements which seek to extend access to knowledge. For those interested in one such movement check out the Open Content Alliance.

Cross-posted at Madisonian

Posted by Deven Desai at 03:37 PM | Comments (1) | TrackBack

Google's Principles

I'll be presenting at the University of Chicago Legal Forum symposium today on "Internet Nondiscrimination Principles." Readers of the blog will be familiar with my concerns about Google; here's a precis for today's talk:

Google's advocacy for net neutrality has focused policymakers on the dangers of permitting a few dominant carriers to act as unaccountable bottlenecks controlling the flow of information. However, Google itself may soon pose more of a threat of "bottlenecking" than the carriers it is calling to account. In certain cases, leading search engines need to be held accountable for the way they collect, order, and present information. Nondiscrimination principles first proposed for carriers may also inspire fruitful regulation of search engines.

As Greg Lastowka has recently observed, "fortunes are won and lost based on Google's results pages, including the fortunes of Google itself." I look forward to discussing the future of search engines with panelists and others at the U. Chi. law school. I'm happy to send my slides to anyone interested in the topic.

Posted by Frank Pasquale at 09:15 AM | Comments (1) | TrackBack

What Computers Can't Do (and Google Should)

To what extent are Google's unpaid results driven by algorithms, and to what extent do individuals make decisions about rankings? Though many suspected the latter, it's been hard to prove it's a regular occurrence. But Seth Finkelstein now believes a line has been crossed with Google's latest efforts to control popular sites' sale of links for cash:

[According to Danny Sullivan,] "Google stressed . . . that the current set of PageRank decreases is not assigned completely automatically; the majority of these decreases happened after a human review. That should help prevent false matches from happening so easily."

I don't want to create false incentives, and human review is good of course. Yet I can't help thinking that we've now crossed a line here. Perhaps with the best of intentions, for the most worthy of reasons. But still, we're now on the other side of some divide.

Now, there really is someone sitting in a room thinking along the lines of : "Hmm, the algorithm says you have Pagerank 9, but looking at your site, you're using your pagerank-powers for link-profit, so let's turn it down a few notches, perhaps to Pagerank 7, so it's not quite as attractive. If in the future you prove to be a more moral vessel of our power, we may restore you to full strength."

That's a change. Good or bad, it's different from what's been the case before.

I have a few thoughts on the change, and on some parallel controversies, below the fold.

First, it's important to contextualize Google's business-oriented manual review in the larger struggle to force responsibility onto the search engine. Consider the following controversies in Brazil, and how Google and MySpace are responding:

In December of 2005, [Brazilian activist Thiago] Tavares set up a nonprofit group called SaferNet. Modeled on U.S. organizations, the site allows users to report online crimes via its Web site. Within weeks, he says, the site was receiving hundreds of complaints. More than 90% were about [Google-owned] Orkut. Mr. Tavares began pointing out problems to Internet companies. He says Yahoo . . . and Microsoft . . . promptly removed material he flagged as offensive and promised to hold copies for authorities. . . .

But the young lawyer says Google gave him the brush-off. He says Mr. Hohagen, the head of Google's Brazil operation, didn't reply to several requests for meetings. In early 2006, Mr. Tavares gave a Google press officer a CD containing 220 pages of evidence of alleged Orkut crimes. He never heard back.

* * *

Addressing such problems can prove expensive. News Corp.'s MySpace faced similar complaints in recent years. Now, company executives say, each of the eight million new pictures uploaded to its site each day is reviewed at least once by a human being. That program costs MySpace several million dollars a year.

The MySpace experience suggests that, once a site has a critical mass of revenue, perhaps it ought to have responsibility to dedicate some portion of that revenue to policing itself. If computers can't do that policing, humans must be employed.

So what are the implications of increasingly direct manual intervention in the world of search and social networking (and their potential merger)? Both PageRank penalties and photo-reviewing are commendable steps in themselves, but they also suggest larger responsibilities for search engines. For example, Google's decision to penalize link-sellers' organic results suggests a larger non-commercialization norm for its own organic results. Moreover, if it can manage to analyze and adjust the PageRank of influential pages for business reasons, it ought to be more open to challenges to rankings based on public policy. Its concession to "asterisk" the high rank of anti-Semitic sites might lead to other examples of commendable openness.

Posted by Frank Pasquale at 09:21 AM | Comments (0) | TrackBack

Can Antitrust Accommodate Privacy Concerns?

The proposed Google/DoubleClick merger has provoked a complaint from EPIC and concern from many privacy advocates. EPIC claims that Google's standard M.O. amounts to a "deceptive trade practice:"

Upon arriving at the Google homepage, a Google user is not informed of Google’s data collection practices until he or she clicks through four links. Most users will not reach this page. . . . Google collects user search terms in connection with his or her IP address without adequate notice to the user. Therefore, Google’s representations concerning its data retention practices were, and are, deceptive practices.

One key question raised by the proposed merger is whether privacy concerns like these can be folded into traditional antitrust analysis. Peter Swire argues that they can; he believes that "privacy harms reduce consumer welfare [and] lead to a reduction in the quality of a good or service." I am broadly sympathetic with Swire's aims, but I worry that contemporary antitrust doctrine is too etiolated to encompass his concerns.

First, here is Swire's perspective on how things may change for the worse for consumers after the merger:

Google often has "deep" information about an individual's actions, such as detailed information about search terms. Currently, DoubleClick sets one or more cookies on an individual's computers, and receives detailed information about which sites the person visits while surfing. DoubleClick has "broad" information about an individual's actions, with its leading ability to pinpoint where a person surfs.

If the merger is approved, then individuals using the market leader in search may face a search product that has both "deep" and "broad" collection of information. For the many millions of individuals with high privacy preferences, this may be a significant reduction in the quality of the search product—search previously was conducted without the combined deep and broad tracking, and now the combination will exist.

Initial points of contention here include a) the definition of the products at issue and b) how to weigh the costs and benefits of a merger. The combined company would have different segments of "customers" in a multi-sided market:

1) searchers trying to find sites
2) ad-buyers trying to reach searchers

Swire argues that many people care about privacy, and "[i]t would be illogical to count the harms to consumers from higher prices while excluding the harms from privacy invasions—both sorts of harms reduce consumer surplus and consumer welfare in the relevant market." But the web searcher category not only includes people who care about privacy, but also includes many people who don't care. According to Eric Goldman's work on personalized search, some may even consider the gathering of data about them to be a service. The more information is gathered about them, the more targeted ads to them may become. If you're going to "pay" for a service by viewing ads, you may well be paying less if the ads bear some relation to things you might buy.

So while Swire models advertising and data collection as a cost to be endured, Google/Click is likely to say that "deep and broad tracking" (and the resulting ads) are a service to customers. Swire might respond that individuals hyperbolically discount future privacy protection for small monetary gains in the present, and that public policy should prevent that.

But in my view, privacy might better be considered an "irreducibly social good" than some quantum of enjoyment individuals trade off for money. As Sunstein and Frank suggested in their work on CBA and relative position, given the importance of positional goods in today's society, people who trade off safety/privacy/etc. will likely "outcompete" peers who won't do so. Though their work was inspired by health and safety regulations, its upshot applies equally well to privacy:

When a regulation requires all [individuals to purchase] additional [privacy], each . . . gives up the same amount of other goods, so no [one] experiences a decline in relative living standards. The upshot is that an individual will value an across-the-board increase in [privacy] much more highly than an increase in safety that he alone purchases.

A collective commitment to privacy may be far more valuable than a private, transactional approach that all but guarantees a "race to the bottom."

Can contemporary antitrust accommodate such concerns? Many now believe that consumer welfare only takes into account allocative efficiency. For example, the DOJ was hard-pressed to adequately factor in a basic democratic commitment to diverse communicative channels during many media mergers. The FTC might find it equally difficult to address the political and cultural implications of search engines now.

But what if we shift from thinking of loss of privacy as a "cost" of web searching, to considering it as a reduction in the quality of the product of web searching? Swire quotes National Society of Professional Engineers v. U.S., to validate this consideration:

"The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain: quality, service, safety, and durability - and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers" (435 U.S. 679, 695 (1978)). The Merger Guidelines, § 4, specifically mention "improved quality" among the possible effects of efficient market behavior, along with lower prices and new products

Here I think Douglas Kysar's work on the product/process distinction may help Swire's case. Kysar has claimed that consumers should have a right to make choices of products based on how the products are made, not just how well they work. Kysar argues "in favor of acknowledging and accommodating consumer process preferences within theoretical frameworks for policy analysis, given the potential significance that such preferences may serve in the future as outlets for public-regarding behavior."

Admittedly, the valuation problems here might be difficult; how exactly are we to determine how much consumers are willing to pay to avoid privacy-eroding companies? But on the other hand, consider the array of incommensurables already entering into the decisionmaking process: the different markets for "Google/Click"'s products, the weighing of the value of potential new services against the potential diminution in quality of old ones, etc. Perhaps, as Heinzerling and Ackerman suggest in their book Priceless, we should stop even trying to pretend that these decisions can be made on anything approaching a quantitative basis. Or at least acknowledge that the numbers can be cooked in many different ways to produce a desired end result.

Perhaps consumer concerns like the ones Kysar raises can't fit easily into contemporary antitrust analysis. But that might be one reason to establish a regulatory body that could take a more holistic view of the role of search in the contemporary economy--and to suspect any proposals to move from ordinary regulation to antitrust as the sole constraint on business conduct in certain fields.

One final point on the merger's non-privacy implications: In our piece Federal Search Commission?, Oren Bracha and I briefly mention some complexities caused by Google's purchase of YouTube. For example, does Google weight its merger with a company in its ranking algorithm? How well are YouTube's rivals doing in searches on Google for videos? And how will DoubleClick's current rivals do in search results for ad-serving companies after the merger? Just as Google wants the carriers to be open about how they manage traffic, it might be proper for Google to be transparent about exactly how its acquisition of a company affects that company's position in its search results. As Google becomes the centralized clearinghouse of information about us, someone needs to be in a position to watch this watcher.

Posted by Frank Pasquale at 11:00 AM | Comments (0) | TrackBack

Future of Reputation

[This is a mini-review of Dan's new book--if you want all the links, just click over to Madisonian, where I first posted it.]

I read Dan's book in galleys, and I'm happy to recommend it here for a number of reasons. I've never encountered such a fun read that also manages to be a scholarly work on cyberlaw.

Solove draws us in with the old classics of humiliation--South Korea's infamous "dog poop girl," Jessica Cutler's embarrassed paramour, and the Star Wars kid. Each sparked an avalanche of comedy, critical comment, spoofs. . . . and, like hope at the bottom of Pandora's box, a tiny bit of sympathy as we wonder: will we be next?

Pace Andy Warhol, that's not likely, but Solove uses the titillating stories to explore a deeper question: do we have any right to control true information about ourselves? Or influence the way we are portrayed? If somebody posts a vicious lie, they can be liable for defamation. But what about disclosure of private facts--should we have any right to stop that?

In past articles, Solove's done a great job analyzing (and advocating for the extension of) individual rights vis a vis big data aggregators like Choicepoint, banks, and the government. FutureRep breaks new ground because it focuses on a harder issue: how to deal with Web 2.0's swarm of privacy-invading individuals. When it comes to privacy, we may well be our own worst enemies. But didn't Yochai Benkler assure us that peer production would be liberating? Who wants to put the brakes on a Generation Google that doesn't merely not object to a loss of privacy, but appears even to demand it?

The lasting contribution of FutureRep is that Solove dons his other scholarly hat--as an interpreter of the humanities--to give us reasons why we should want to protect our privacy--and respect that of others. We hear from John Dewey on the sanctity of second chances, Thoreau on nonconformity, even philosopher of gossip Ben Ze'ev. I can't put Solove's case for privacy in a nutshell, but let's just say it gives us ample reason not to "just get over" total transparency.

Does Solove offer us a way out of the privacy morass? His recommendations subtly weave together proposed changes in law, norms, and technology to help tame the reputational ramifications of persistently searchable, replicable, and unaccountable data stores. He wants to see important social networking platforms and search engines build in some protections for those who can be harmed by information on them. But he respects the First Amendment, and would only make the original poster of harmful information of no public concern legally liable for it--not the cascade of re-posters and commenters that power the blogosphere.

At this point, I hesitate to give more details because I feel the book is too rich to keep summarizing in a blog post. However, I can't emphasize enough how important Solove's project is. In an era of knee-jerk libertarianism and First Amendment absolutism, Solove demonstrates that there are some baseline norms and laws that should govern the spread of personally identifiable information, gossip, and rumors. Against the conventional wisdom that would declare the 'net ungovernable, Solove offers hope that a gossip-saturated blogosphere can become a more fair, decent, and perhaps even public-minded place.

Posted by Frank Pasquale at 10:46 PM | Comments (0) | TrackBack

(Fewer) Rights for Algorithms?

Yale Law Prof. Ian Ayres's Super Crunchers celebrates the new era of data-driven decisionmaking. A NYT piece provides a nice introduction to these technologies:

[W]hen so much data is processed so rapidly, the effect is oracular and almost opaque. Even with a peek at the cybernetic trade secrets, you probably couldn’t unwind the computations. As you sit with your eHarmony spouse watching the movies Netflix prescribes, you might as well be an avatar in Second Life. You have been absorbed into the operating system. . . . [W]hen executives at MySpace told of new algorithms that will mine the information on users’ personal pages and summon targeted ads, the news hardly caused a stir. The idea of automating what used to be called judgment has gone from radical to commonplace.

Jeff Lipshaw asks, in response: "is it possible to program [such automation] so powerfully that it replicates all possible human (i.e. brain) programming?" And Larry Solum helpfully brings up a 1990 article he wrote on the implications of such questions for law: "Could an artificial intelligence become a legal person?"

Though such a possibility might seem a long way off, it is embedded in some recent legal arguments of Google. Google is perhaps the world's premier example of "automating judgment;" its engineers are constantly thinking of new ways to order information in response to search queries. According to one of its court filings, "Google takes extraordinary measures to protect its trade secrets and confidential commercial information." While resisting any efforts to "peak under the hood" of its search processes, Google also has been claiming that whatever results they come up with should be protected under the First Amendment. So one of the questions posed by Solum has nearly come to a pass: Google is seeking constitutional protection for what (it assures us) is an entirely automated process. Should it get it?

Let's follow a thought experiment parallel to Solum's inquiry to begin thinking about the issue. Imagine that, instead of Google, Inc., a robot that ordered search results claimed that its outputs were First Amendment protected speech. It will (be programmed to) argue that "it is a person, and that it is therefore entitled to certain constitutional rights." Though I am abstracting from an extraordinarily rich and complex paper, I find it helpful to note here Solum's immediate response to that possibility:

Should the law grant constitutional rights to AIs that have intellectual capacities like those of humans? The answer may turn out to vary with the nature of the constitutional right and our understanding of the underlying justification for the right. Take, for example, the right to freedom of speech, and assume that the justification for this right is a utilitarian version of the marketplace of ideas theory. These assumptions make the case for granting freedom of speech to AIs relatively simple, at least in theory. Granting AIs freedom of speech might have the best consequences for humans, because this action would promote the production of useful information. But assuming a different justification for the freedom of speech can make the issue more complex. If we assume that the justification for freedom of speech is to protect the autonomy of speakers, for example, then we must answer the question whether AIs can be autonomous.

Solum also considers a number of objections to granting the AI itself rights; for example:

[T]he "paranoid anthropocentric" argument [runs:] "AIs might turn out to be smarter than we humans. They might be effectively immortal. If we grant them the status of legal persons, they might take over."

***

The second objection, that AIs lack some critical element of personhood, is really a series of related points: AIs would lack feelings, consciousness, and so forth. The form of the objection, for the most part, is as follows. First, quality X is essential for personhood. Second, no AI could possess X. Third, the fact that a computer could produce behavior we identify with X demonstrates only that the computer can simulate X, but simulation of a thing is not the thing itself. X is that certain something--a soul, consciousness, intentionality, desires, interests--that demarcates humans as persons. Call this argument, in its various forms, the "missing something" argument.

***

Finally, the third objection to constitutional personhood for AIs is that, as artifacts, AIs should never be more than the property of their makers. Put differently, the objection is that artificial intelligences, even if persons, are natural slaves.

The third objection points us in the direction of a more immediate resolution of the problem here: in our case the algorithm is a tool of an existing corporate entity, Google. But should the fact that Google's results are automated lead them to get less protection than, say, a social search engine that ordered the web? I think so, for reasons largely derived from the first two objections to "rights for AI's" mentioned above, and also because of the secrecy of the Google search process.

In terms of the AI argument, one might claim that Google is much closer to a data provider than, say, a newspaper. The latter actually expresses a point of view on what the news is; the former merely aggregates information. This difference has consequences for law.

Data providers like consumer reporting companies can be held more accountable for what they say than a newspaper. If I have a dispute with a newspaper over whether they've portrayed me accurately, I'm probably going to have to sue for defamation in order to settle things. But according to an FTC website, "If an investigation doesn't resolve your dispute with the consumer reporting company, you can ask that a statement of the dispute be included in your file and in future reports. You also can ask the consumer reporting company to provide your statement to anyone who received a copy of your report in the recent past." Moreover, " only authorized individuals such as potential lenders, employers, insurance underwriters or landlords may access your report, and only if they intend to do business with you." Finally, in case of disputes, "you’re entitled to add a written statement (100 words or less) explaining your view of the mistake."

Why might we want to extend this type of distinction to the search world (and, indeed, strengthen consumer protections vis a vis "black box" data aggregators like ratings agencies and FICO scorers)? I think that there is something deeply troubling about unaccountable power--about a system that can simply spit out some life-changing result without giving a full explanation for it. Suspicion about FICO scores has led some states to prohibit their use in insurance rating, just as Finland has prevented employers from using Google results in evaluating potential applicants. Full First Amendment protection should be reserved for accountable, attributable speech--not the data processing systems that are increasingly powerful arbiters of taste, authority, and creditworthiness.

Posted by Frank Pasquale at 08:52 AM | Comments (7) | TrackBack

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

I'm very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on Amazon.com and Barnes & Noble's website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I've been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I'm aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I've achieved these goals.

I welcome any feedback. Please let me know what you think of the book, as I'd be very interested in your thoughts.

Posted by Daniel J. Solove at 12:31 AM | Comments (3) | TrackBack

Siva's New Blog/Book: The Googlization of Everything

The Institute for the Future of the Book has been doing fascinating research on publishing the past few years. In a nice convergence of substance and style, they've offered a fellowship to Siva Vaidhyanathan, a thought leader on search engines who's presently composing a book on the company that's turning the content game upside down. Here's Siva's take on cyberculture in the 9th year PG (post-Google):

This blog . . . is dedicated to exploring the process of writing a critical interpretation of the actions and intentions behind the cultural behemoth that is Google, Inc. The book will answer three key questions: What does the world look like through the lens of Google?; How is Google's ubiquity affecting the production and dissemination of knowledge?; and how has the corporation altered the rules and practices that govern other companies, institutions, and states?

Many smart commentators at the TPRC conference last weekend observed that Google's extraordinary power derives from its status as the ultimate hub of interconnected knowledge and applications on the web. Websites "push back" against Google at their peril--anger it too much, and you may just get de-indexed or buried in the last pages of search results. And just as I've worried that the carriers could strangle Google, it's easy to imagine the tables turned: Google going proprietary and deciding not to allow its site to be carried on the carriers that fail to pay for it.

It's time for Google's critics to take advantage of the same "superhub" strategy by aggregating around some central site of inquiry and accountability. I don't know if Siva's site aims to become that, but he's certainly been prescient about the risks of unaccountable power in the search space. Here are some of his reflections on these matters:

Q: What do you see as the danger posed by Google?

A: The real question is not one of danger, but one of transparency. You can imagine some nightmare scenarios in which Google allows the government to have too much information about us and people are falsely profiled. Or you can imagine that Google starts censoring access to information. I don’t think either of those scenarios are either imminent or likely, but that doesn’t detract from the fact that as Google grows in importance in our lives, we should demand some accountability. And increasingly, competition is failing to generate that accountability. In other words, Google has managed to leverage its advantage in Web search to become a player, an instant factor, in so many different parts of our lives and so many parts of the economy. My argument is that it’s about time we began to question Google’s motives and tactics.

Google does us a tremendous amount of good work every day. We can’t imagine going a day without it. But what we don’t question is what the cost really is. What is Google getting from us? Well, Google is getting our attention and Google is getting a tremendous amount of money from its advertisers as we click through its ads. But we’re also letting Google profile us in ways that we don’t have any say over. We don’t have any sort of clue as to what Google thinks it knows about us. (emphasis added)

There's a lot more to be said about the power of platform owners. For example, we need to question the claim that sites are successful because of their great innovation; rather, their innovation may well be deemed to be great only because the site is successful. But I'll leave those issues for later on this week.

Posted by Frank Pasquale at 06:10 PM | Comments (1) | TrackBack