April 13, 2010

Last week I blasted the hypocrisy of the Digital Due Process Coalition as a convenient cover for Google's hegemonic behavior.

In an editorial (*), the New York Times clearly acknowledges "the coalition's recommendations do not address other important Internet privacy issues that involve the ability of private companies to monitor and record their users' behavior". Yet, despite this and the further failure of the coalition to account for privacy abuses by lawyers representing "private litigants, such as a company suing another", the third plague of privacy, the New York Times credits the coalition for getting the "discussion [about new US legislation] off to a strong start".

Actually these recommendations are but a red herring (1) intented to mislead the US Congress right from the start. Its first goal is to distract the legislators and the public at large from asking whether privacy risks are real or not, a rather more fundamental question.

If privacy risks are as serious as these fillips and many other advocates make them to be, the law should consider Google a major offender, the accomplice rather than the victim of government overreach. Although in past instances involving privacy, the European Commission has proven to be all bark and no bite, it remains deeply troubled by the issue. According to David Gelles, today's "EU's Information society commissioner has warned social networking sites that she will not hesitate to intervene with legislation" (**). Viviane Redding may have Facebook in her sights but Google can hardly deny its own Buzz.

Perhaps my concerns are self-serving, perhaps the head of the FTC Consumer Protection Bureau, David Vladeck, was misinformed when he declared "some online tracking [to be] Orwellian", perhaps privacy risks are overblown. But if it is indeed the case, why not let the police look at all the digital evidence without restraint? The guilty will object but their protection is not the point, is it? Law abiding citizens have nothing to fear.

In this alternative it is fair to assume Google favors the latter answer. It follows it is for its own sake, not ours, that it seeks to limit access by the government to the confidential data it accumulates on us. Having backed down in front of China, Google is eager to trade its defeat into a far reaching victory over the US Government.

Mind. Its clever tactical moves may reek of hypocrisy but why Google should not be allowed to pursue its own interest? Everybody does it.

"Airlines in the United States started charging for luggage in 2005", recalls Christine Negroni, adding Spirit Airlines "will charge as much as $30 each way for carry-on bags that are too big to fit under the seat" (***). Outrageous? That's the spirit. Meanwhile AT&T plans to bill consumers twice for the privilege of using their cellphones. As Matt Richtel tells it (****), "it does not make sense for carriers to spend money building large towers in residential areas because most people are not home during the day". So AT&T will sell them "a miniature cell tower in [their] living room" for $150.

Billing both sender and receiver for the same message has also been a recurrent goal of telecommunication companies. "European network operators are casting around for new sources of revenues, and Google is an obvious target, given that its YouTube video-sharing service is a prime driver of data traffic" report Andrew Parker, Richard Waters and Paul Taylor (*****). Already in the US, a "US appeals court ruling found that the FCC did not have the authority to dictate how broadband providers manage their networks". As Stephanie Kirchgaessner and Andrew Edgecliffe-Johnson write (******), one last hope for preserving Net Neutrality is that Comcast needs the FCC to authorize its buying NBC Universal.

The issue with so many communication pipe providers is that they have oversold their bandwidth to consumers in a manner reminiscent of televangelist Jim Bakker (2). It can only work if not too many users attempt to tap the promised bandwidth at the same time.

Some find innovative ways to make users pay twice. Others would be content were users to pay just once. According to Miguel Helft, "The American Society of Media Photographers and other groups representing visual artists plan to file a class-action lawsuit against Google" (*******). Visual artists see no reason why authors and publishers should be the only one protesting "Google's library project on copyrights grounds".

I have a great respect for authors and visual artists. But what about performance artists (3)? Don't they have rights to their creation too? Aren't we all, you and me, performance artists as we go about living our daily life? Why should Google exploit the trace data of our behavior for free because we do not enjoy the privileges of a brand name?

At least Google users do not risk personal bankruptcy. Not so with MasterCard. No fiduciary duty could prevent the credit card branding company from exploiting to its own benefit the consumer data it collects in the course of its money lending. "MasterCard is getting into the predictive online marketing business" (********). Asked their opinions by Andrew Martin, law professor Anita L. Allen speaks of "citizens [...] with no control over our own data" and communication professor Joseph Turow talks about the risk of "social discrimination".

Both warnings are spot on. The former points to our being turned into data slaves with no rights to our own data lives, whose fruits belong to our corporate masters. The latter reminds us of the reason why the ACLU and other independent organizations have accepted to join the Digital Due Process Coalition and thus provide a cover to Google. Indeed a real issue with surveillance is that little recourse exists for people misclassified by the government, even though mistakes are bound to happen. "Ensnared by error on growing U.S. watch list, with no way out", the title of Mike McIntire article's says it all (*********).

What the ACLU failed to appreciate and what Joseph Turow has recognized is that the same lack of a formal protest process plagues Google and the other sites which monetize consumer confidential information. "Companies rarely explain[...] to people how they [are] categorized". This is why I recommend viewers be at least given free online access to the profile used to target them each time they are presented with a targeted ad (4).

Corporate abusers of our data rights urgently need to deflect our attention. The US government makes a very credible scapegoat. How convenient!

Philippe Coueignoux

• (*) ................... Dial-Up Law in a Broadband World, editorial (New York Times) - April 9, 2010
• (**) ................. Facebook under privacy microscope, by David Gelles (Financial Times) - April 12, 2010
• (***) .............. Fewer Bags, More Revenue, by Christine Negroni (New York Times) - April 7, 2010
• (****) ............ From AT&T, at-Home Cellular 'Towers', by Matt Richtel (New York Times) - April 7, 2010
• (*****) .......... Backlash as data traffic explodes, by Andrew Parker, Richard Waters and Paul Taylor Financial Times) - April 10, 2010
• (******) ........ Comcast faces tough regulation in bid to take over NBC,
  .....................by Stephanie Kirchgaessner and Andrew Edgecliffe-Johnson (Financial Times) - April 10, 2010
• (*******) ..... Visual Artists to Sue Google Over Vast Library Project, by Miguel Helft (New York Times) - April 7, 2010
• (********) ... MasterCard Set to Open An Online Shopping Mall, by Andrew Martin (New York Times) - April 9, 2010
• (*********) . Ensnared by Error on Growing U.S. Watch List, With No Way Out, by Mike McIntire (New York Times) - April 7, 2010
• (1) see Red herring in the Wikipedia
• (2) Jim Bakker sold more time share rights in his real estate to his followers than could be physically provided, had the followers attempted to exercise them.
• (3) see Performance art in the Wikipedia
• (4) see ePrio's comments to the FTC