June 8, 2010

On June 1, I showed how the Information Age had torn apart all data related tacit agreements and invited various kinds of hogs to feast on the equivalent of free food. Two days later Matt Richtel tells us AT&T is cancelling its "30$ a month for unlimited data" contracts as its iPhone subscribers "[took] "unlimited" literally" (*). A month after another cunningly prophetic fillip about automation running amok, I may yet become a must read for stock market brokers looking for an edge.

Seriously, look at the facts rather than believe me on my word alone. There are altogether too many attempts to foist new religions upon us in this Age. No sooner the priests of Anglo-Saxon capitalism lose mind share, here comes Eric Schmidt heralding a new faith through the medium of Maija Palmer and Lioner Barber (**) (***).

"Google's mission [is] to index all the world's information". Eric Schmidt's credo is as far-reaching as it is simple. Without a doubt it is also appealing as it satisfies a vital need, helping us locate information with an open platform. Google deserves to reap the rewards of its brilliant business model, .

Financial success however does not satisfy Eric Schmidt. "Convinced Google's mission [...] is valid", not to say holy, he claims autonomy. "[It] should not be regulated". Arguing that in the information business "the laws [...] are inconsistent", he thus sets Google above the law. His premise is correct and the recent adverse judgment in an Italian court is wrong headed. True but hardly an excuse for the utter arrogance of his conclusion.

Popularized by Netscape, the term "technology evangelist" should not be taken so literally by Eric Schmidt. His self-righteous zeal is downright frightening. "The "launch first, correct later" approach is vital to the ultra-creative and flexible company DNA which has produced the world's most popular search engine, Gmail, and Google Earth which maps the entire planet." This is a carbon copy of BP's culture, "drill first, contain later".

In an open letter addressed to Eric Schmidt, I stressed data snippets had long been known to have informative value. Forced by the public outcry to recognize it was the case with the snippets recklessly reaped by his Street View data sweepers, he admits failure. "We screwed up. Let's be very clear about that". What we should be clear about is that the autonomy he claims for Google means the rights to make one's own laws, literally.

Indeed the only "review into [Google's] privacy practices" Eric Schmidt will brook is "internal". And if we needed proof of how impartial can be a judge with a inherent conflict of interest, he gives us his conclusions ahead of the inquiry. The company culture is blameless, it was the fault of a rogue programmer. Despite my advice, Eric Schmidt is ready for a few heads to roll, as roll they did at AOL. And what prompted him to add the designated scapegoat is male? Is this snippet intended as an excuse? Was Jérôme Kerviel, whose trial opens today in Paris, rogue for being male?

Trust depends on industry. Neither a bank nor an oil company, Google claims our faith. Facebook's gospel is all about sharing among one another.

Information sharing deserves many a laud indeed. Yochai Benkler and Lawrence Lessig have long promoted the benefits of putting intellectual property in common. As with Google though, the issue with Facebook is not its mission but the control it commands upon its execution.

Not surprisingly Facebook proves to be a weaker religious brand than Google. Not for Facebook to set itself above human laws. As soon as you ask your users to register, lawyers of all stripes are likely to demand you share user profiles with them. And Facebook will assuredly give to Caesar what its followers had been led to believe was theirs to control.

Facebook Principles sanctimoniously declares (1). "People should own their information. [...] They should have the freedom to decide with whom they will share their information". Users beware. The same paragraph adds "[they] are not capable of limiting how those who have received information may use it". Having the users' "Facebook friends" in mind, little did the writer realize the warning applies against Facebook itself.

To learn more on "how [Facebook] share[s] information", one must turn to its privacy policy (2). "We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law".

Nobody can blame Facebook for complying with the law. It is not even a mark of either arrogance or hypocrisy to rely on one's "good faith". Were law so clear cut, many trial lawyers would be out of work. But Facebook is a little too quick to bury this clause about giving Caesar his due.

Given the length of Facebook's privacy policy, any clause is going to be buried. But for a company dedicated to sharing, it is strange its own lawyers would not share more of their considerable knowledge with its naive users. How many among the latter can tell the difference between a subpoena and a court order? Why is it that I had to call Google to help me find out more about Facebook's current positions on subpoenas?

On the one hand, Terry Hillig reported last February Facebook is publicly invoking the law to resist a subpoena from the defendant's lawyer in a criminal trial held in Edwardsville, Illinois (****)(3). "[Associate Judge James] Hackett said he needed to do more research and would rule later".

On the other hand, subpoena requests must be so routine, Facebook is rumored to have written a policy "for law enforcement use only" whose 2008 edition is available courtesy of cryptome.org (4). I would share it with you but, you would never guess, Facebook says it is confidential. Quelle horreur! Could this document be genuine? What about this other page according to which "Facebook requires a $150 processing fee per user ID" (5)? Could it be Mark Zuckerberg has finally found a sustainable business model based on subpoena processing?

Dear reader, before you put your faith in Google or follow Facebook with its gospel of one-way sharing, I sincerely hope you think twice.

Google and Facebook are proclaiming New Age religions designed for the credulous.

Philippe Coueignoux

• (*) ....... Heaviest Users Of Phone Data Will Pay More, by Matt Richtel (New York Times) - June 3, 2010
• (**) ..... Google to give regulators rogue data as it admits WiFi privacy blunder, by Maija Palmer and Lioner Barber (Financial Times) - June 4, 2010
• (***) ... Google chief puts creativity at the heart of its culture, Interview of Eric Schmidt by Maija Palmer and Lioner Barber (Financial Times) - June 4, 2010
• (****) . Arguments heard in Facebook subpoena case, by Terry Hillig (St. Louis Post-Dispatch) - February 17, 2010
• (1) see Facebook Principles - as retrieved on June 7, 2010
• (2) see Facebook Privacy Policy - April 22, 2010 version as retrieved on June 7, 2010
• (3) look up the Stored Communications Act in the section on "Surveillance" of "Liabilities and Vulnerabilities in the Information Age"
• (4) for more details, see Cryptome in the Wikipedia and this URL listed by Google under keywords "Facebook subpoena".
• (5) for more details, see a thread by Sam Glover in the lawyerist