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Roger Clarke **
Version of 9 December 2005
To accompany an invited presentation to a seminar on 'Google: Infinite Library, Copyright Pirate, or Monopolist?', at the National Institute of Social Sciences and Law, A.N.U., Canberra, on 9 December 2005
© Xamax Consultancy Pty Ltd, 2005
Available under an AEShareNet licence or a Creative Commons licence.
This document is at http://www.rogerclarke.com/II/Google0512.html
This accompanying slide-set is at http://www.rogerclarke.com/II/Google0512.ppt
Other speakers at the seminar considered Google from the perspectives of authors, publishers, libraries, and competition regulators. I was asked to speak on privacy aspects, but preferred to adopt the broader user perspective. This is important in order to better appreciate the tensions that exist even among the interests of individuals, let alone the conflicts between individuals and corporations.
These notes provide a brief, two-stage description of what Google is, and consider the interests of users of various kinds, depicted as:
Google is not just a service. It's a corporation that provides many services, which are increasingly inter-linked. The foundation was, and remains, the search-engine. This depends on a 'crawler' that accesses and indexes a substantial proportion of the content accessible on the Web; and on a 'precedence algorithm' which sorts the pages that match any given search-string into a sequence that is usually helpful, and sometime uncannily accurate. The company has developed a range of extensions to the basic service. Although the service is gratis, the company earns considerable revenues from advertising, because the advertising is able to be targeted based in particular on the search-terms nominated by the user.
The company has also branched into a wide range of additional lines of business, some by takeover, and some through internal development. In line with the conventions of business strategy, these generally appear to be intended to 'cross-leverage' one another. Significant among them are the following:
Since its explosion in 1993, the Web has vastly increased the accessibility of content. Since their emergence soon afterwards, search-engines have complemented the Web by assisting in the discovery of content. There were many search-engines before Google, and there are many others now. Google has been the most fashionable for some years, and appears to cover a larger proportion of the Web than its competitors (although others appear to have better coverage in specific areas). It also has a greater range of add-on services.
There remain many ways in which the Web, and search services, could be improved. W3C, Google, and many other companies are working on enhancements. They, and governments, are also working on many features that are harmful to the interests of content-accessors, such as censorship tools.
The people and organisations that produce content have significantly different interests from content-accessors. They want the scope to create content and express themselves. They want the freedom to communicate that content; but most also want to choose whether the communication will be to anyone, or only to a restricted target-market; and to choose whether to make the content available gratis or for a fee.
Most content-expressors also want to retain control over some aspects of the content they create. Copyright law has long provided rights to originators over copying and republication, and over adaptation and republication of adapted works. It has become very common for content that has the potential to attract revenue to be acquired and controlled by for-profit corporations rather than by individual originators. A few forms of content, such as feature films, require considerable investment, and result from creative work by teams rather than a single primary originator. As a result, copyright in such works is commonly owned by corporations from the outset.
During the last 15 years, as the digital era has threatened their monopoly profits, copyright owners, particularly in the music and film industries, have lobbied the U.S. Congress for stronger protections. The U.S. is lobbying for these extended powers to be given effect in other countries. Remarkably, many countries appear incapable of recognising the disadvantages to themselves in doing so, and are falling into line. The increasingly vassal state, Australia, was among the first to do so.
The stage is set for enormous tensions between the interests of content-accessors and content-expressors, with the legal dice already very heavily loaded in favour of the content-expressors.
The Web and search-engines began life in the mid-1990s as gratis services, socially-oriented and socialist or communitarian in nature. The patterns have changed a great deal during the following decade, as business enterprises have sought ways to make money from the vast volumes of content and traffic. The social dimension is far from dead, but there is now a substantial economic dimension that threatens to swamp it.
In the economic context, it's necessary to consider the extent to which the interests of consumers, particularly the less powerful (particularly individuals, but also associations, and small business enterprises) hold up against the interests of the generally much more powerful corporations that control much of the available content.
In many circumstances, consumer rights are simply not respected. Commonly, terms are not negotiable, and in many cases are not even transparent. They are changeable at short notice. They do not survive takeover, or change in management policy. Old versions of terms are deleted, and cease to be discoverable. Communications from consumers to providers are ignored, and in many cases barriers are created to make it difficult for the consumer to work out how to send them in the first place. Recourse and enforcement are almost non-extistent, not only across jurisdictions, but even within historically consumer-friendly jurisdictions like Australia's.
No expansion of consumer protection to cope with these abuses is currently in prospect. As content-expressors increasingly flex the powers granted to them by the U.S. Congress and subsidiary parliaments such as Australia's, the interests of content consumers seems likely to be lost in the surge of copyright supremacist activity.
It was noted above that Google is structuring its business portfolio in order to achieve cross-leveraging. A form of cross-leveraging that is of especial concern is the consolidation of information about the behaviour of users of multiple Google-provided services.
Critics of Google's behaviour have made much of a statement by its CEO to financial analysts: "We are moving to a Google that knows more about you" (reported in The New York Times of 10 February 2005, and subsequently in many other places).
At this stage in its development, Google the corporation has the following streams of data about its users available to it:
There is no evidence that the Google corporation has yet moved to mine this data; but this would in any case be a strategically unwise manoeuvre at this early stage. There are various protections nominated in the various privacy policies, none of which are anything like adequate, and all of which are malleable at the will of the company.
The ability of individuals to sustain a private space is seriously threatened by the digital era, and the resultant explosion of content-availability and -discoverability.
Individuals' privacy interests exist in multiple dimensions:
The motivations for protecting privacy are varied, and can be distinguished at the following levels:
People seek to control data about themselves. This applies especially to data that they have not disclosed, and would expect others not to disclose either. But the interest in control extends far beyond the home and personal secrets. Data that is compulsorily disclosed, to government agencies and to monopoly-providers, has also long enjoyed protections. So does data that has been selectively disclosed, which is subject to the law of confidence. Even in public places, there are many circumstances in which people have had, and continue to have, reasonable expectations of privacy.
The Web and search-engines have tended to undermine the longstanding protection of privacy through obscurity. Many people conduct research into other people, drawing on court reports, mentions in the media, letters to the editor, records of participation in events, and postings to lists, fora and blogs. The motivations for some of these activities are constructive (as in preparations for a meeting), but in other cases they are less so (such as stalking, harassment, and extortion).
The privacy implications of email are often overlooked, and there is an increasing risk of email becoming available to indexing software. For example, private email may escape onto lists by being forwarded by other parties; and it may be subject to pre-trial discovery, sub poena or search warrant, and hence find its way into court records.
Every user's IAP maintains logs of traffic, in some cases including content. Every user's email-ISP maintains an email database. In the case of webmail-only services (such as Hotmail, Yahoo and GMail), the retention-period is highly uncertain. In all of these cases, the traffic-details and text are subject to unexpected use and to both legally authorised and unauthorised disclosure, often without notification to the individual(s) who thought it was 'their' mail.
Gmail is a particularly untrustworthy provider, because it refuses to explain the circumstances under which it releases its subscribers' information, and the number of occasions on which it has done so.
Moreover, Gmail's special features have considerably extended the list of risks. Its subscribers are subject to targeted ads based on text from senders, which represents, for Vance Packard ('The Hidden Persuaders') and many other people, the manipulation of consumer behaviour. Google is in a strong position to correlate the ads with other data it holds, including, if and when it chooses to do so, with the content of the emails.
Importantly, the threats extend beyond Gmail subscribers themselves to the individuals who send message to Gmail subscribers. The text is examined, is retained long-term, and is subject to largely uncontrolled use and disclosure. The result has been that some people decline to correspond with people via Gmail addresses.
The early, socially-oriented era of the Web is being swamped by the contemporary dominance of corporate interests. Coupled with the corruption of longstanding copyright law to advantage big business, the tensions between human and corporate interests on the Internet are now very high, and will mostly be resolved against the interests of individuals.
Google is a major player in this arena. Its claim that "You can make money without doing evil" is being put to the test, as its growth and diversification puts enormous temptations in front of its executives.
Clarke R. (1997) 'Introduction to Dataveillance and Information Privacy, and Definitions of Terms' Xamax Consultancy Pty Ltd, August 1997, at http://www.rogerclarke.com/DV/Intro.html
Clarke R. (1998) 'Information Privacy On the Internet: Cyberspace Invades Personal Space' Telecomm. J. Aust. 48, 2 (May/June 1998), at http://www.rogerclarke.com/DV/IPrivacy.html
Clarke R. (1999a) 'Internet Privacy Concerns Confirm the Case for Intervention' Commun. ACM 42, 2 (February 1999) 60-67, at http://www.rogerclarke.com/DV/CACM99.html
Clarke R. (1999b) 'Freedom of Information? The Internet as Harbinger of the New Dark Ages' First Monday 4, 11 (November 1999), at http://www.rogerclarke.com/II/DarkAges.html
Clarke R. (2000) '"Information Wants to be Free ..." Xamax Consultancy Pty Ltd, February 2000, at http://www.rogerclarke.com/II/IWtbF.html
Clarke R. (2001) 'Paradise Gained, Paradise Re-lost: How the Internet is being Changed from a Means of Liberation to a Tool of Authoritarianism' Mots Pluriels 18 (August 2001), at http://www.rogerclarke.com/II/PGPR01.html
Clarke R. (2004a) 'Origins and Nature of the Internet in Australia' Xamax Consultancy Pty Ltd, January 2004, at http://www.rogerclarke.com/II/OzI04.html
Clarke R. (2004b) 'Very Black 'Little Black Books' Xamax Consultancy Pty Ltd, February 2004, at http://www.rogerclarke.com/DV/ContactPITs.html
Clarke R. (2005) 'Visual Surveillance and Privacy' Xamax Consultancy Pty Ltd, August 2005, at http://www.rogerclarke.com/DV/VisSurv0508.html
See also 'Publications Relevant to e-Privacy - 1998-2003', at http://www.rogerclarke.com/DV/AnnBibleP.html
Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., a Visiting Professor in the E-Commerce Programme at the University of Hong Kong, and a Visiting Professor in the Department of Computer Science at the Australian National University.
The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax.
From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 60 million in early 2019.
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Created: 8 December 2005 - Last Amended: 9 December 2005 by Roger Clarke - Site Last Verified: 15 February 2009
This document is at www.rogerclarke.com/II/Google0512.html