Yesterday, the EFF released a news update boiling the privacy questions down to a single issue they see as overriding: government surveillance. Bookstores and libraries have fought hard for the principle that government can’t demand to know what books you’ve read without a search warrant. The EFF and its partner organizations want Google to make a similar commitment:
Given this backdrop, we asked Google to promise that it would fight for those same standards to be applied to its Google Book Search product. We want Google to promise that it will demand more than a subpoena (which is written by a lawyer and not approved by a judge) or some other legal process that a judge has not approved before turning over your book records. In essence, we asked Google to tell whoever came to them demanding reader information: “Come back with a warrant.”
We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce applicable Terms of Service, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against harm to the rights, property or safety of Google, its users or the public as required or permitted by law.
The EFF, unhappy with the degree of discretion built into this standard, is now preparing to ask the court to order that a “Get a warrant or go home” standard be written into the settlement. Compared with the EFF’s original letter to Google, the frustrated tone of yesterday’s note is quite notable:
Honestly, we thought it would be an easy thing for Google to do.
Unfortunately, Google has refused. It is insisting on keeping broad discretion to decide when and where it will actually stand up for user privacy, and saying that we should just trust the company to do so. So, if Bob looks like a good guy, maybe they’ll stand up for him. But if standing up for Alice could make Google look bad, complicate things for the company, or seem ill-advised for some other reason, then Google insists on having the leeway to simply hand over her reading list after a subpoena or some lesser legal process. As Google Book Search grows, the pressure on Google to compromise readers’ privacy will likely grow too, whether from government entities that have to approve mergers or investigate antitrust complaints, or subpoenas from companies where Google has a business relationship, or for some other reason that emerges over time.
We need more than “just trust us” here. EFF has spent the last three years suing AT&T because that company decided, for reasons we still don’t know, that it would not stand up for user privacy when the government came knocking.
In in the past Google (unlike some other large search companies, *cough*cough*) has actually gone to court to fight governmental demands for search queries. In that case, though, Google’s arguments were longer on the trade-secret angle and shorter on the user-privacy angle. (Google did argue that if users felt their privacy was being violated they’d be less likely to trust Google, which is a kind of second-order privacy claim.)
Google’s attitude strikes me as interestingly Christian. Their corporate ethos—captured in the “Don’t Be Evil” slogan—is strongly committed to the idea that there is an objective right and wrong and that the company has a duty to do good. But they’re also committed to the idea that they should be bound by God’s laws, not by man’s. When faced with a moral dilemma, the Googlers withdraw to their cave for prayer and fasting to consult their inner lights, then emerge with the confidence of one through whom God has spoken. Where positive law and divine law conflict, the positive law must be the wrong one. Google will live with it, as a dutiful believer must, but will never accept its moral legitimacy. Indeed, to wrap Google in too many laws is to deprive it of the free will necessary for its moral choices to do good to have true meaning.
Maybe that’s a stretch. But I do have a sense that the EFF/Google rift here is about something slightly less clearly cut-and-dried than the usual public-interest/private-corporation divide. The EFF’s post sees Google as in constant danger of lapsing into sin, a view that is nearly incomprehensible within Google’s quasi-messianic narrative of itself.
Enough armchair psychoanalysis. Back to the docket and the clippings …