Tag: google

Google v Hood Not Even a B-Movie Drama

For someone who clearly doesn’t like Hollywood, Emily Hong, policy wonk for New America’s Open Technology Institute*, is determined to pitch an over-the-top narrative about AG Hood v Google that is so divorced from reality that I don’t think Luis Buñel would know what to make of it.  Reposted on Slate, her title and basic plot, which portrays Google as underdog — fighting not only for itself but for the sanctity of the Internet — against the juggernaut of the MPAA in cahoots with states attorneys general, begs the audience to suspend not only disbelief, but the verifiable evidence that Google’s reach into government is greater by orders of magnitude than several other whole industries.  So much so, that when faced with indictment in 2011 by the DOJ for its role in illegal pharmaceutical trafficking, the corporate executives of Google were able to buy themselves a non-prosecutorial settlement for the meager sum of a half billion dollars.  Thus, the focus of AG Hood’s recent investigation had been to confirm whether or not Google was in compliance with that settlement — i.e. that the company was not still knowingly profiting from illegal trade.

That the MPAA would have an interest in this investigation is no surprise, even though copyright infringement was among the least of AG Hood’s concerns.  Still, ever since the release of emails leaked during the Sony hack, Google and its translucent PR network have attempted to spin the intent of Hood’s investigation — which 39 other AGs have now joined — into a conspiracy story in which the MPAA was effectively calling the shots and using the AG as a puppet to pursue the studios’ interests.  Meanwhile, it should be noted that Google does not deny that the company plays a role in mass infringement (and even monetizes it), but that any measures it might take to mitigate the problem would unavoidably lead to a “less open” Internet.  And so, like any good/bad movie plot of this nature, why do the conspiratorial MPAA want AG Hood to pursue Google?  To take over the world, of course.  Only in this case, it’s more like take over the Internet in order to censor it.  Thus, in an homage to B-movie villains everywhere, Hong writes:

“Beyond its melodrama, Google v. Hood also embodies a deeper ideological clash that persists between those who believe that Internet content must now be technologically and legally controlled and those who argue that it remain as open as possible in the service of free expression. Organizations like the MPAA and its analogue in the music industry, the Recording Industry Association of America, advocate for strict control, while technology companies (many of whom are the online intermediaries who would likely bear the costs of any control regime) and civil liberties activists want to preserve an unhindered atmosphere.”

Believe what you want about the players, their actions, and their motives.  The details and  misrepresentations are so out of proportion now, it’s futile to even go there.  For the sake of argument, then, let’s assume companies are companies, all morally or amorally equal, if you will.  Yes, the motion picture industry would like to curb piracy; and yes, Google would like to avoid taking responsibility (financial or otherwise) for its role in the problem.  That’s business.  We get that.  But the idea that the story of Hood v Google is an epic tale of good vs evil — about the forces of openness vs the forces of censorship — is preposterous.

When Google ponied up its half-billion-dollar settlement and, in theory, stopped advertising against illegal drug trafficking, did you feel a chill in your right of free speech?  Or when millions of Americans applauded Reddit for its recent ban of the racist subreddit CoonTown, did you sense so much as a cool breeze warning you not to speak your mind on Facebook or Twitter, or to search for some news item somewhere on the Web?  And while an “open Internet” sounds like a good thing, it should not be taken as gospel that whatever puts an onus on Google will “close” the Internet.  To the contrary, we have seen in recent months both litigation and policy decisions in the U.S. and abroad, which demonstrate that Google and others can be forced to mitigate harm or conform to anti-trust regulations without affecting our rights in the slightest.  In fact, for the moment, I feel entirely free to say that I believe this narrative Google and writers like Emily Hong keep spinning is complete bullshit.  And I have to wonder if that freedom is honestly best served by just letting Google do whatever it wants with complete immunity.

*As stated in the article this organization includes Google executive chairman Eric Schmidt on its board.

Canadian court reflects common sense in rejecting Google appeal.

whack moleWith progress in almost anything, there are usually downsides. Manufacturing and power generation produce pollution; automobiles produce pollution and accidents; smart phones produce selfies.  In some cases, it is only common sense (at least to many of us) to try to mitigate the negative results of an otherwise good thing through legal regimes because the owners of industry don’t have a particularly solid track record for taking voluntary measures to reduce harm where they can.  It’s a familiar narrative. A factory puts too much gunk in the river; society, through its government agencies, tells them to cut it out; and the factory owners howl that there will be job losses, the end of free markets as we know them, and communist troops in the streets within weeks.  When we’re sane, we call bullshit, the factory cleans up its act, and life goes on in the free world while the river rehabilitates itself.  When we’re less sane, we believe the narrative of industry, go for the short money, and let the larger consequences of that polluted river be our kids’ problem.

Google’s search tool indexes the internet for us, and this is a good thing. It even anticipates what we are about to search for, which is a slightly creepy thing, but often impressively handy.  On the other hand, top search results can sometimes be misleading because the hierarchy of results has little to do with quality data per se.  For instance, a paid-for ad linking to a scam tech-support supplier might appear well above the legitimate site hosted by the manufacturer. This is a disservice both to the consumer and the supplier, but Google has rarely demonstrated that it cares much about these particular flaws. Traffic is traffic. Money is money. As a result, search itself can be an opportunity for bad actors to hijack business away from legitimate sellers toward inferior, infringing, or illegal goods and services.  For years, copyright holders have argued that allowing pirate sites to appear in top search results exacerbates the piracy problem; and Google has countered that search has little to with piracy.

Either way, even when Google has taken action to remove a link that contributes in some way to harming an individual or entity, they have thus far only been willing to remove specific pages (URLs) as identified in a single DMCA notice and takedown request. Thus, all a bad actor has to do is change URLs for pages on his website, forcing the injured party to keep sending a barrage of DMCA requests in an effort to stop Google searches from providing infringing results. If that sounds unreasonable, it is.  If your common sense says perhaps Google should de-index the entire site of a bad actor so that the site doesn’t appear in any results anywhere, it’s because that is common sense.

But so far, Google, the Internet industry in general, and so-called digital rights organizations like the EFF have been vehemently opposed to de-indexing sites under any circumstances, which can make them sound more like techno-fundamentalists than rational adults capable of understanding that balanced and measured restrictions designed to protect the rights of the injured from the predations of the injurious neither harm the benefits of the internet nor in any way threaten larger principles like free speech.  And in somewhat different language, that’s pretty much what the Court of Appeal of British Columbia told Google last week in a case of this very nature.

Equustek Solutions makes network devices that enable complex business equipment to communicate with one another.  One of this company’s distributors (named as Morgan Jack in the litigation) began first stripping Equustek’s name from products and selling them as competitive alternatives, and later stealing trade secrets to manufacture and sell knock-off products.  When Morgan Jack was ordered by a Vancouver court to stop operating its counterfeit business in that province, they did what any contemporary huckster does — they went virtual. They set up a web “business,” creating multiple sites, which is how one goes about hijacking search results from a legitimate supplier. Equustek, is now suing Morgan Jack for trademark and trade secrets infringement, but in the meantime the British Columbia Supreme Court granted the plaintiff injunctive relief by ordering Google to de-index the counterfeit sites from its search results, not only in Canada, but worldwide.  Google appealed this judgment, and was last week rejected on all of its major arguments, which I shall attempt to summarize.

Jurisdiction

Google claimed that because it did not do business materially in the province — no offices, no servers, etc. — that the court did not have the “competence” (legalese for authority) to order the removal of these sites from being returned in its search results.  But the appellate court responded thus:

“[Google’s] activities in gathering data through web crawling software, in distributing targeted advertising to users in British Columbia, and in selling advertising to British Columbia businesses are sufficient to uphold the chambers judge’s finding that it does business in the Province. The court, therefore, had in personam jurisdiction over Google.”

That’s a compelling response with potentially far-reaching implications because among the many defenses used by web owners who contribute to some form of harm — either by design or by accident — is the metaphysical “nowhereness” of a website.  It becomes as much a matter of existential philosophy as one of legal theory. But the tech-utopian view, deriving much chutzpah from Barlow’s Declaration of the Independence of Cyberspace, likes to describe a website as though it’s a particle, everywhere and nowhere at the same time, that it can no more be bound by terrestrial laws of Man than the quantum universe can be forced to behave according to the applied physics of our everyday, macro experience.

Of course, it’s common-sensical to think that a company that operates globally, that proudly markets its transformative role in tens of thousands of communities, and that profits handsomely by virtue of its global reach into multiple business sectors can be held to some burden of civic responsibility in every community in which it clearly does tangible business. In fact, in referring to the defendants Morgan Jack from the actual infringement case of Equustek v Jack, the judge writing this appeal decision uses the following language:

“As the product (i.e the counterfeit Equustek hardware) that they sell is a physical one which must be delivered to customers, it may be more accurate to describe their operations as ‘clandestine’ than as ‘virtual’. “

That’s certainly not a reference to Google, but it could easily be a reference to a company like Amazon in a similar case; and as Google indeed moves into physical territory, like home delivery of products, the “You can’t touch me, I don’t exist” argument may continue to sound rather unappealing to judicial ears.

Also, on the issue of jurisdiction, Google argued that upholding the B.C. Court’s injunction to de-index the sites from search results would make the company’s search services subject to every jurisdiction in the world.  And you gotta love the judge’s response to this complaint …

“That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.”

I know it’s not very Googley to think that a global business has to sort out for itself how to comply with the laws in each country; and as pointed out in my last post, it is much more Googley to tell the nations of the world to stop acting like individual states and get with their one-world program. Of course, it is also very Googley to shape-shift from statelessness to nationalism when it suits their purposes, as seems to be the basis of one of its other central arguments in this case.

Comity

In this argument, Google vacillates from the premise, “You have no authority because we’re nowhere” to the premise, “You have no authority because we’re in California.”  In essence, courts in one country should not issue rulings that offend or disrespect the courts or interests of the country of residence of the individual or company subject to said ruling.  This argument by Google elicited much case law discussion by the judges, and then the following response:

“The only comity concern that has been articulated in this case is the concern that the order made by the trial judge could interfere with freedom of expression in other countries. The importance of freedom of expression should not be underestimated. . . .

It has not been suggested that the order prohibiting the defendants [Morgan Jack] from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.”

Again, it is encouraging to see a ruling that corresponds with common sense because it seems obvious that a narrow and limited removal of links, material, or even whole sites from search results, ordered in the name of ensuring the rights of an individual or entity, does not violate the principles of free speech. To say otherwise is self-serving hyperbole on the part of the industry, not unlike the hypocrisy we see when these invasive data-mining companies and their “rights” organizations presume to warn us about the perils of government surveillance. Meanwhile, Google’s other major argument echoes another common refrain, and its rejection may have consequences well beyond this case.

Inappropriate Burden on a Non-Party

Google argued that the court did not have the authority to grant an injunction against a non-party to a litigation.  The principle being argued here (and it’s an important one) is that an injunction must be filed against a party in a dispute that is “justiceable” (i.e. can be settled in court) in order to afford the individual or entity the full rights available to a named party.  But after citing several more pages of case law, the decision states the following:

“Where such a justiciable issue exists, however, the granting of injunctive relief against third parties as an ancillary means of preserving the parties’ rights is a well-established jurisdiction of the courts.”

This addresses a central, ongoing debate about the role of web platforms which are often used to facilitate harm even if that is not the intent or design of the site in question.  Can Backpage’s site be held responsible for users advertising the prostitution of minors?  Can Reddit be held responsible for users uploading photos stolen by hackers? Can Google be held responsible for search results leading to infringing, tortious, or other criminal enterprises? In general, the answer to these questions will be no, at least so far as actual liability is concerned. And that’s probably a good thing.

But the relief that plaintiffs like Equustek are typically seeking has nothing to do with holding a site owner criminally responsible or even filing a civil suit against them for any kind of damages.  In most cases, the injured party simply wants the site owner to remove links, materials, (or in this case de-index whole sites) that are facilitating or aggravating the harm being done by some other party.  It’s kind of like saying “I know you’re not the one hitting me, but if you would stop feeding the bully amphetamines, I’d totes appreciate it.”  Some sites are simply run by bad actors, and individuals and entities harmed by them should not bear the undue burden of entreating Google to de-list one page at a time, while the bad actor keeps moving the offending page(s) around his site.

The case of Equustek v Google demonstrates that a very narrow and carefully weighed judicial approach to de-indexing clearly criminal sites can coexist with free speech and of course not break the internet. More importantly, the Canadian court places what seems like a very fair and minimal degree of burden on the site owner, rejecting the all-too-popular claim that sites are to be treated exclusively and universally as neutral, passive entities in these matters.

It will be interesting to see if Google complies with this order and whether or not this case indeed serves as precedent for future cases in which similar arguments are made by other intermediaries.  Equustek gets to the crux of one of the underlying questions of the digital age — the need to reconcile the reality that while these platforms do foster new lines of openness and expression, they also breed new methods for bad actors to do considerable harm, almost by remote control.  I find it hard to believe that we cannot balance these forces in cyberspace by means of any greater legal contortions than are required to strike this same balance in the “real” world.  Or as I think these appellate judges might say, “The internet is the real world. Time to treat it that way.”

Reconciling the New Surveillance State

I’ve said it several times, but it is still astonishing to watch Americans use social media to air their fears about agencies like the NSA while ignoring the fact that it’s the social media company itself watching us more intimately than any government agency ever will. In a recent editorial for Newsweek, Senator Whitehouse (D-RI) calls attention to the fact that not only do Americans seem paradoxically to distrust government agencies more than private companies with a profit motive for domestic surveillance, but that this contradiction also skews rational debate in Congress with regard to the still-relevant national security role of the intelligence community. Writes Senator Whitehouse:

“I contend that a corporate-backed, ideology-fueled effort to deride and diminish the government of the United States exists and has gotten out of hand. I contend that the consequences of that corporate-backed effort of derision and diminution play out in the way America views the service of NSA personnel, and in the way Congress debates NSA programs.”

On the other hand, as reported in The New York Times, a recent study by the Annenberg School of Communications at the University of Pennsylvania, indicates that Americans are uncomfortable with the amount of data they increasingly recognize as the hidden cost of “free” Internet services. But the study also indicates that we are not entirely sure what to do about it. Writes Josesph Turow, professor at the Annenberg School:

“Companies are saying that people give up their data because they understand they are getting something for those data, but what is really going on is a sense of resignation. Americans feel that they have no control over what companies do with their information or how they collect it.”

So, where might that control come from? We could post memes and declarations on social media about how we demand control over data gathering by Google and Facebook and other platforms, but whom would we be petitioning? Exactly. So, when a representative, like maybe Senator Whitehouse, proposes legislation to regulate data mining as a means of consumer protection, are we going to fall for the hysteria again when the Internet industry tells us such “draconian measures will break the Internet”?

More broadly, though, this quote from Senator Whitehouse points to a much larger political and ideological challenge:

“It is ironic that some of the loudest voices in the debate about surveillance reform are corporations that make billions of dollars mining the personal information of their customers. It is also ironic that those who guard our liberty are challenged in the name of liberty.”

Efforts by Silicon Valley-funded organizations to leverage public concern over government surveillance while purposely ignoring private industry surveillance are driven both by profit and by ideology. And at some point, we crossed a very important line. While much of American policy has always been an attempt to balance the natural tensions between private and public interests, no other industry has ever been able to so successfully position itself as an alternative state the way the Internet industry has.

Listen to the refrain in geo-political statements by industry leaders like Google chairman Eric Schmidt, and you hear the rhetoric of stateless, global utopianism. To quote a recent WSJ article reporting on Schmidt’s address to European leaders, “Regarding regular clashes with European regulators on issues ranging from data protection to anti-competitive charges, Mr. Schmidt said that Google was listening to European leaders, but that the situation would be helped if Europe spoke with one voice on digital matters.” That might sound reasonable on the surface, but it is consistent with the smug tone of inevitability adopted by presumptive technocrats. Or to quote Schmidt directly, “There’s an old way and a new way; the new way is global and digital, the old way is local and proud, and there’s nothing wrong with it, but the old will be displaced.” Indeed, these pesky individual nations with their quaintly distinct cultures and laws should wise up and make things easier for Google, bearer of the future.

Of course, it isn’t just Europe. The rhetoric of the Internet industry consistently plays havoc with the American political psyche by claiming to provide the ultimate technological defense against government overreach, which means any attempt to regulate that industry’s practices will be described as a government threat to the existence of said technological defense against government. Presumably, this feeds a sense of obsolescence about states in general, and if we are truly stuck in that logical vortex, it’s no wonder Americans are going to feel resigned to the condition of rampant data mining by these companies. (By the way, this is the parable of the computer that goes haywire and then kills its own makers because it is programmed to protect itself at all cost.)

I think only two kinds of people believe earnestly in a stateless, global society: fools who think we’re just one big group-hug away from world peace; and greedy-as-fuck leaders of multi-national companies, who seek every opportunity to avoid regulation by damnable governments. So, I’m all for oversight of the NSA and such, but it’s probably worth keeping in mind that intelligence agencies track terrorists, drug dealers, human traffickers, cyber-criminals and hackers, and crazy-ass domestic hate groups while companies like Google sell ads against the videos those groups put on social media. Hence, to Senator Whitehouse’s point, it might be necessary to restore some balance to the debate.