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Thursday, July 03, 2008

Stunning Court Decision Hands Private Viewing Habits Over to Viacom

Danny's trenchant analysis of this recent court order to Google starts by playing the WTF card, but does much, much more. In this detailed post, he cogently argues for a savvy national Internet privacy act. Absolutely. We cannot endure repeated episodes of clumsy application of outdated law, with judges spinning theories about cookies and IP addresses, sometimes ignoring real privacy concerns, sometimes overzealously protecting users by deriding innocuous practices at the expense of legitimate new economy companies that are the driving force of US productivity.

Physically, my reaction was exactly the same. Reading that Google might have been conciliatory enough to allow that user logins are basically anonymous pseudonyms, my jaw, too, literally dropped.

Will Google refuse to hand this information over? Surely they will fight with every legal means available. Similar to their response to the DOJ, an important principle is at stake. I'm not the legal expert you're looking for, but the legal requirement to hand over private information needs to meet strict tests. The most classic case would be an episodic criminal act where particular information relevant to a particular case is given up by court order. "Fishing expeditions" that allow lawmakers or complainants to see large amounts of data from millions of users is a huge violation of business privacy and individual privacy. Let's hope this putrid decision does not stand.

In whatever legal system, online platforms that do a poor job of preventing harm to companies in a variety of ways - be that stolen content, counterfeit goods being sold as in the recent French case against eBay - are liable to sanctions and fines, and should basically "clean up their acts." How that equates to allowing the legal system and a plaintiff to engage in a full audit of massive amounts of private data is something best left to a legal expert to explain... and, I hope, for Google's legal counsel to argue vigorously against. Decisions like this trend towards the state of affairs private companies and free market advocates have always feared the most: an arbitrary state where "they" can shut you down out of fear, prejudice, or misunderstanding. What national political candidate will now get up to the podium and intone: "America. Deserves. Better."?

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