What Google Knows: Privacy and Internet Search Engines

Search engines are the most important phenomenon on the Internet today and Google is the gold standard of search. Google evokes ambivalent feelings. It is adored for its ingenuity, simple, modest-looking interface and superb services offered at no (evident) cost. Yet increasingly, it is feared by privacy advocates who view it as a private sector big brother posing perhaps the biggest privacy problem of all times. Google is an informational gatekeeper harboring previously unimaginable riches of personal data. Billions of search queries stream across Google’s servers each month, the aggregate thoughtstream of humankind, online. Google compiles individual search logs, containing information about users’ fears and expectations, interests and passions, and ripe with information that is financial, medical, sexual, political, in short – personal in nature. How did Google evolve from being a benevolent giant seeking to do no evil into a privacy menace reviled by human rights advocates worldwide? Are the fears of Google’s omniscient presence justified or overstated? What personal data should Google be allowed to retain and for how long? What rules should govern access to Google’s database? What are the legal protections currently in place and are they sufficient to quell the emerging privacy crisis? These are the main issues addressed in this article. See SSRN page for this and additional articles here.

Complying with Israeli DP Law: Database Registration, International Transfers and Employee Monitoring

Multinational companies operating in Israel typically face several recurring data protection issues, including local database registration requirements; conditions for international data transfers; and monitoring and surveillance of employees at the workplace. This article briefly outlines the Israeli approach to each of these issues in turn, including notable recent changes and proposals for reform.

Israeli DP Law: Constitutional, Statutory and Regulatory Reform

In this article, published in the October 2007 issue of Privacy and Data Protection, I review recent changes in Israeli privacy and data protection law. The elevation of the right of privacy to constitutional status has moved the Israeli Supreme Court to extend privacy and data protection beyond the scope of the Privacy Protection Act of 1981 (“PPA”). And the PPA too is changing: driven by technological developments and the will to harmonize Israeli law with European standards, a government committee has recently proposed a wholesale reform of the statute’s data protection chapter (the Schofman Report). To increase compliance and enforcement levels, Israel has established a new data protection authority – the Israeli Law and Information Technologies Authority (“ILITA”) – to replace the former Database Registrar. I review in this article the spate of recent changes in Israeli data protection law and comment on persisting discrepancies between Israeli and European data protection.

Bi-annual post

Haven’t posted here in quite some time. Decided to start a Hebrew blog instead. Well – maybe a good opportunity to link to a couple of articles I wrote recently.

Court Imposes Israeli Law on Gibraltar Gambling Website

An Israeli Magistrate’s Court ruled last week that the operation of a Gibraltar-based gambling website constitutes a criminal offence in Israel under Israeli law (Israeli Police v. Michael Carlton (in Hebrew)). The website, VictorChandler.com is based in Gibraltar, where gambling is legal. Judge Abraham Hyman reasoned that the website targeted Israeli customers by providing a Hebrew interface and advertising on billboards in Israel, and is therefore deemed to have operated in Israel, despite the foreign location of its web servers and corporate headquarters. Judge Hyman added, that in the context of online commerce the locus of the activity is the end user’s PC (country of destination rule), as opposed to the Website’s servers or corporate establishment (country of origin rule). Judge Hyman’s decision tackles the dense problem of personal jurisdiction in the online environment. The law usually allocates jurisdiction according to the geographical location of the activity or one of the parties (typically, the defendant). Yet, as Joel Reidenberg once explained, “the entire architecture of the Internet is based on the principle of geographic indeterminacy”. Determining where a particular action took place (between websites, advertisers, hosts, servers, routers, end users’ PC) is very difficult in cyberspace. Indeed, Michael Geist named his 2001 article on the subject “Is There a There There? Toward Greater Certainty Internet Jurisdiction” (BERKELEY TECH. L.J. 1345 (2001)), questioning whether any useful distinctions can be made based on geographical location in cyberspace. The Israeli court’s application of a country of destination rule is not surprising, particularly given this was a matter of consumer protection and criminal law, where the law of the forum typically prevails. Judge Hyman referred to the Yahoo v. LICRA affair, where Yahoo sought protection from an American court against enforcement of a French court’s judgment for violation of French laws prohibiting the sale of Nazi-era memorabilia. Judge Hyman effectively applied a “targeting test”, imposing jurisdiction due to the Website’s “purposeful availment” of its services in Israel. The targeting and purposeful availment tests are taken from US jurisprudence on the topic, namely the oft-cited Zippo test (Zippo Mfr. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997)), the Calder test (Calder v. Jones, 465 U.S. 783 (1984)), and Professor Geist’s own contractual  and technological targeting tests. The problematic aspects of such extensions of jurisdictions are clear: criminalizing activities which may be legal where performed, issuing unenforceable decisions (e.g., the Yahoo case itself), and instigating potential diplomatic incidents.

Googled to prison?

Privacy and data protection in search engine data has taken center stage last year, with the unfortunate revelation by AOL of detailed search records of over 600,000 users (ultimately leading to the resignation of the company’s CTO), and Google’s legal battle with the US government over use of search logs for law enforcement purposes (See US District Court decision, accepting the governments request for data in part, here). Search engines collect a massive amount of highly personal data concerning our interests, hopes, desires, health, finances, travel plans, job searches and more. This invaluable asset attracts the interest not only of the government, but also of private litigants (e.g., copyright enforcement by the music industry, husband-wife custody battles), advertising companies and hackers. Hence, for example, in a recent 7th Circuit Court of Appeals case, a wireless hacker was convicted based on his Google search records. In a North Carolina case last year, a man was found guilty of murder in part because he searched for the words “neck,” “snap,” “break” and “hold” before his wife was killed. The Norwegian press reported yesterday that the Norwegian Data Protection Authority is investigating Google’s vast data storage pratices. Google responded that it can only link a search request to an IP address, not to the individual person behind such address, and in any event is not willing to pass on such information to others. The problem is that Google (and other search engines, for that matter) can personalize the data by use of cookies and additional services, such as the ubiquitous Gmail, and that even anonimized data may be linked to individuals, as illustrated by a NYT reporter in the AOL case. (I am lecturing on the topic at the upcoming annual meeting of the Israeli Internet Association on February 19).

Judges Cite Wikipedia

My students must love this: according to the NYT, courts are increasingly citing Wikipedia in judicial decisions. More than 100 judicial rulings have relied on Wikipedia beginning in 2004, including 13 from circuit courts of appeal. The Supreme Court thus far has never cited Wikipedia. As far as judges go, they don’t get much more conservative than Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago. So if even Judge Posner says — “Wikipedia is a terrific resource. Partly because it so convenient, it often has been updated recently and is very accurate” — law students can probably be expected to do so too.

Senator Clinton: Putting Privacy on the Agenda

Wired reports Hillary Clinton has placed privacy and data protection on her Presidential candidate agenda. Senator Clinton supports a “Privacy Bill of Rights“, which would protect citizens’ right to know what’s being done with their personal information, and offer consumers an unprecedented level of control over how such data are used. Quite a refreshing notion after the Bush administration’s approach to this fundamental right. Indeed, perhaps as a countermeasure to Bush’s notorious USA-PATRIOT Act, Senator Clinton announced she will introduce the PROTECT Act (Privacy Rights and Oversight for Electronic and Commercial Transactions Act) to enact this Bill of Rights. Under the proposed Act,  consumer information will be shared only when consumers “opt-in”, consumers will be notified immediately if their credit or identity is compromised, and they will have a cause of action for damages if their privacy rights are violated. In addition, the Act would recreate the position of a high-level privacy czar, charged with oversight into the workings of government departments and the power to make sure privacy laws are followed. This position was last held by current Ohio State University law professor Peter Swire, under Senator Clinton’s husband’s tenure as president. 

Big Brother’s Little Brother: Your ISP

The US is debating proposed legislation requiring Internet service providers to retain data concerning user traffic for law enforcement purposes. Privacy advocates’ strong opposition to such “data retention” requirements aligns them, oddly enough, with ISPs, which fought similar requirements in Europe. ISPs are concerned with the cost burden of the mass storage and with commercial and legal difficulties such retention poses for their relations with customers. The EU adopted a new Data Retention Directive in March 2006, following the UK’s push after the London terrorist attacks. The government usually points to terrorism and child pornography as the ultimate evils which must be eradicated by online snooping. This is true, yet massive data retention subjects the vast majority of Internet users, who are innocent, to serious privacy risks. Indeed, in a precedential decision, a New Jersey state appeals court held yesterday that computer users can expect the personal information they give their ISP to remain private. A three-judge panel held a computer user whose screen name hid her identity has a “legitimate and substantial interest in anonymity,” referring to an “informational privacy” right in the state Constitution.

 

Foreign Surveillance: Now Near You

The New York Times reports the C.I.A. and Pentagon have been issuing “national security letters” to obtain banking and credit records of hundreds of US citizens and others suspected of terrorism or espionage. The letters, which augment thousands of national security letters issued by the FBI since Sept. 11,  are seen as part of an aggressive expansion by the military into domestic intelligence gathering. The NYT quotes John Radsan, a former assistant general counsel at the C.I.A., who said, “The C.I.A. is not supposed to have any law enforcement powers, or internal security functions, so if they’ve been issuing their own national security letters, they better be able to explain how they don’t cross the line.”  Meanwhile, Attorney General Alberto Gonzales provided little new information on Thursday, testifying before a Senate committee about the Bush administration’s sudden revelation that it would seek court approval for its domestic eavesdropping activities. Gonzales said he could reveal only that the orders “meet the legal requirements” under the Foreign Intelligence Surveillance Act. The broader problem illuminated by these revelations is the “importing” of foreign surveillance powers into the domestic sphere as a result of the collapse of the U.S.S.R. and the escalating war on terrorism. During the Cold War, the enemy was on the “outside”, allowing the FBI to concentrate on domestic law enforcement and the Pentagon/C.I.A. to deal with foreign surveillance. Now the enemy is within, blurring the lines between law enforcement and counter-terrorism, in arenas such as money laundering, data retention and data mining.