TOC Mercy for Naboth's vineyard Your Turn

January 1, 2008

Last year I asked where was the border between the public and the private spheres on Internet. In his thought-provoking sketch of the activist Bruce Marks, Neil Swidey gave me the answer two days before the deadline(*). "You only get what you're strong enough to take." In other words the border in question is a war zone where might makes right, a candid perspective in a land supposedly under the rule of the law.

Will then year 2008 witness a great awakening over eprivacy? I feel comforted by the tactical victory of Facebook users over the Beacon initiative.

In a recent article (**) Kevin Allison takes the long view over what he calls "the struggle", a Maoist term redolent of peasant revolts. He correctly defines the issue as "reconcil[ing] the competing desires of [...] the users whose social connections power the site; the developers whose applications keep [them] engaged [...]; and the advertisers that Facebook relies on to make money". Remember Google deserves its current success for solving a similar challenge, i.e. find the balance of interest over Internet search between users, advertisers and itself.

I also find hope in the study presented by Michael Peel and Kevin Allison (***) on last year's "privacy breaches", the ostinato of my fillips. Quoting Nigel Swycher, the authors conclude "data security is no longer a "second-tier risk assessment" but a task for the executives themselves to address". Can there be a better advertising for my lectures series? Think of how society has, over the years, dealt with accidents in the workplace. At first companies invoked fate or put the blame on individual workers, promptly dismissed if not prosecuted for their negligence. Now it is the turn of company officers to be prosecuted if they failed to provide a safe work environment. Can organized citizenry prevail again and impose privacy obligations with a real bite on all personal data hungry organizations, rather than let them shield their responsibilities behind our pronaocracy?

Too much optimism though would be unwarranted. The recent actions of the FTC are a disappointment. Louise Story reported on its clearing the acquisition of DoubleClick by Google (****). Pamela Jones Harbour, the lone dissenter, declares herself "uncomfortable accepting the merging parties' nonbinding representations at face value" and states "the merger creates a firm with vast knowledge of consumer preferences, subject to very little accountability" (1). I cannot but agree with her level-headed assessment.

Worse still is the set of privacy principles put forward by the FTC staff (2). No doubt this is a gallant attempt to show the FTC is no Tin Woodman and has a heart. Yet it reveals serious misconceptions about the nature of privacy. Take for example how the FTC set forth principles 4 and 5 to address "sensitive data" and usage for "purposes other than behavioral advertising". How can it overlook ordinary data used for behavioral advertising can also be a source of suspect discrimination, e.g. for job ads? Protecting privacy requires to attend to the rule before the exception.

During Ahab's reign, the kingdom of Israel reached an enviable level of prosperity. Ahab himself wanted to expand his palace by buying Naboth's neighboring vineyard. Although Naboth refused to sell, as was his right, what could he do against the king and his plotting wife? Naboth lost his life. Ahab got his plot. A few years later though, a revenge plot cut short Ahab's line and his wife went to the dogs.

Can Google have mercy on our personal data? Isn't its current success in keyword-based advertising enough that it needs to covet Naboth's vineyard? Doesn't Google's management fear another Bruce Marks will arise to avenge our loss with frontier justice?

Philippe Coueignoux

January 2008
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