Google Starts Disappearing Part Of The Internet In Europe

from the censorship-in-action dept

And so it begins. Following last month's dangerous "right to be forgotten" censorship ruling by the EU Court of Justice, Google has now started censoring truthful search results in Europe . According to the Wall Street Journal:

Google engineers overnight updated the company's technical infrastructure to begin implementing the removals, and Thursday began sending the first emails to individuals informing them that links they had requested were being taken down. The company has hired a dedicated "removals team" to evaluate each request, though only a small number of the initial wave of takedown requests has so far been processed.

"This week, we're starting to take action on the removals requests that we've received," a Google spokesman said. "This is a new process for us. Each request has to be assessed individually, and we're working as quickly as possible to get through the queue."

Perhaps even more troubling, is that after EU regulators got worked up about Google's plan to at least indicate that certain search results had been removed (as it does with DMCA copyright takedowns), Google has backed down on that plan:

Google, for its part, has appeared to bend to regulators' desire that the company refrain from indicating in search results when something had been removed. Google had earlier indicated it might highlight the removals, something it does when it removes links to pirated content. But EU regulators told Google in recent weeks that such a move would undermine the spirit of the decision by making it clear some individuals had wanted information about them suppressed, one regulator said.

Instead, Google on Thursday added a blanket notification that appears at the bottom of most results for individual name searches conducted on Google's European search websites, according to an explanation the company posted to its website. The notification—"Some results may have been removed under data protection law in Europe"—is added algorithmically to searches that appear to be for a name, a person familiar with the matter said.

Still, it seems highly likely that Google is going to face more litigation over this, since some are grumbling that Google is only removing those results on its EU pages, and that if someone sneaks over to one of Google's non-EU search engines, it can still find the (again, truthful) information.

This whole thing is a huge mess based on people totally misunderstanding the nature of public information. And, because of that, there are going to be a series of fights over just how far Google has to go in censoring such information.

Filed Under: eu, right to be forgotten, search engines, search results
Companies: google

German Newspapers Want Google To Pay Them For Appearing In Search Results (Even As They Try To Rank Higher)

from the insanity-offense dept

About four years ago, you may recall, a group of German publishers were absolutely furious at Google for daring to send them traffic. At the time, they more or less admitted that they were just jealous that Google was able to earn revenue:

Hans-Joachim Fuhrmann, a spokesman for the German Newspaper Publishers Association, said the Web sites of all German newspapers and magazines together made 100 million euros, or $143 million, in ad revenue, while Google generated 1.2 billion euros from search advertising in Germany.

"Google says it brings us traffic, but the problem is that Google earns billions, and we earn nothing," Mr. Fuhrmann said.

Of course, as we pointed out at the time, he was comparing apples to oranges. Google earns money from search advertising. And the newspapers earn money from advertising as well, so the claim that the newspapers earn "nothing" is wrong. However, two years later, the publishers convinced the German government to take a stand and claim that showing news snippets and linking to the source somehow required a license. That resulted in a legislative fight, ending last year with a somewhat watered down snippet law that no one was entirely sure applied to Google.

Well, it appears the publishers aren't satisfied with how this has all worked out, because as Jeff Jarvis is pointing out, they've kicked off a legal arbitration process, in which they're demanding 11% of gross worldwide revenue on any search result that includes one of their snippets. This has been filed by the VG Media industry group. This is bizarre on multiple levels, including the fact that if everyone was able to get that, given the "10 blue links" nature of Google, the company would have to pay out over 100% of its search revenue to the very same people they're sending traffic to. That's... ridiculous.

Of course, we've seen all of this before. In nearby Belgium, a bunch of newspapers demanded payment back in 2006, and a court then ordered Google to pay up. When Google, instead, decided to remove those newspapers from its index, the very same Belgian newspapers flipped out and demanded to be let back into Google. Eventually, for reasons that I still don't understand, Google effectively decided to pay off the Belgian newspapers with a promise of vaguely helping them to make money online. I would imagine that the German newspapers are just looking for a similar handout. Same thing as French newspapers.

However, the example of the Belgians both demanding payment, but then also freaking out when they were removed from the index, is instructive. These newspapers receive tremendous benefits from being included in Google: Google sends them a ton of traffic. That's why they got so upset when removed. The problem is that (1) they're apparently bad at monetizing that traffic and (2) they're jealous of Google, thus demanding a pay off of some sort. As Danny Sullivan writes about this latest lawsuit, the true hypocrisy is apparent in the fact that the German newspapers, supposedly so upset about Google listing them without paying, have not only done nothing to remove themselves from Google's index (as can be easily done), but have actually made use of Google's tools to enhance their appearance within Google.

As Sullivan notes, these newspapers aren't being "swept up into Google's results against their wills," but rather appear to be "actively trying to gain more placement and visibility in them." And that's why this move for a cut of the revenue is so ridiculous and cynical. Basically, they're getting an incredibly valuable service from Google for free and are now demanding to get paid for it as well.

Filed Under: germany, newspapers, publishers, search engines, snippets
Companies: google, vg media

Former NSA Lawyer Asks Google To 'Forget' All Of Techdirt's Posts About Him

from the making-a-point-about-bad-laws dept

Former NSA counsel and surveillance/security state hypeman Stewart Baker has had just about enough of Techdirt making "distorted claims" about his statements for the "purposes of making money." To counter this, he's sent a "right to be forgotten" request to Google stating the following:

https://www.techdirt.com/blog/?tag=stewart+baker

Reason this link violates the right to be forgotten:

This link is inappropriate. It compiles stories making many distorted claims about my political views. Political views are a particularly sensitive form of personal data. The stories are written by men who disagree with me, and they are assembled for the purpose of making money for a website, a purpose that cannot outweigh my interest in controlling the presentation of sensitive data about myself.

Baker's certainly not hoping for Techdirt's posts on him to be de-listed (although I imagine he'd indulge in a chuckle or two if they went down). He's mocking the ridiculousness of the "right to be forgotten" ruling Google is now attempting to comply with. He has submitted other requests as well over such things as outdated photos and "inaccurate" statements as the kickoff to an informal "hack" of a bad law.

I feel bad for Google, which is stuck trying to administer this preposterous ruling. But that shouldn't prevent us from showing quite concretely how preposterous it is.

I propose a contest. Let's all ask for takedowns. The person who makes the most outrageous (and successful) takedown request will win a "worst abuse of privacy law" prize, otherwise known as a Privy.

Stewart's takedown request targeting Techdirt is mostly tongue-in-cheek, but it does highlight the sort of abuse that should be expected when government bodies attempt to force the internet to bend to their will. Granting a "right to be forgotten" pretty much ensures that a majority of the requests will be no more legitimate than Baker's.

Multiple advocates for the law have compared it with the infamous DMCA takedown notice, something that has also been routinely abused. But at least the DMCA takedown carries with it the (almost never enforced) charge of perjury for issuing bogus takedowns. The RTBF form simply asks for a copy of the submitter's identification. There's nothing in it to discourage abuse of the system. If you don't like something someone has said about you on the web, just fill out a webform.

While we at Techdirt disagree with most of what Stewart Baker says, at least his position on privacy remains consistent. His "Privys" -- an "award" given to the worst or most hypocritical abuser of privacy laws -- have generally been awarded to worthy recipients, usually people who tend to think these laws exist to save them from their own embarrassments.

As for the "right to be forgotten," it appears as though requests may be forwarded to Chilling Effects. On June 6th, this test post showed up in the database.

A request has been made to remove one or more links from a search page under European "right to be forgotten" rules, following Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez.

The body of the post contains nothing but the word "TEST" but this seems to indicate that an attempt will be made to publish takedown attempts. At this point, it's impossible to say how much information will be redacted, or if the European Commission will even allow this sort of transparency. Google is also toying with appending messages to the bottom of search results pages indicating that link(s) may have been removed due to "RTBF" requests. If this works like DMCA requests do, then a link to Chilling Effects database will be provided. These measures won't necessarily deter abuse, but they will make it much easier to track.

Filed Under: abuse, censorship, europe, nsa, right to be forgotten, right to forget, search engines, stewart baker
Companies: google

EU Commissioner Says 'Right To Be Forgotten' Compliance Will Be Just As 'Easy' As Fighting Piracy

from the either-way,-it-will-all-be-Google's-fault dept

This is interesting. Just a couple of days after Geoff Taylor (the head of BPI -- the UK's RIAA) declared that Google's acquiescence to the "right to be forgotten" proved that it could do more to fight piracy, EU commissioner Viviane Reding delivered a statement that approached the subject from a wholly opposite direction.

If Google can handle the millions of requests it gets to take down content that infringes copyright, it should be able to handle the few requests it gets to enforce the EU's "right to be forgotten", according to Viviane Reding, the European commissioner for justice, fundamental rights and citizenship.

Speaking on BBC Radio 5 Live, Reding said that "there are relatively little numbers of requests" to take down information owing to the newly granted right to be forgotten, but that there are "some million requests to take down material because of copyright questions."

"So you see," Reding continued, "this is a small thing as compared to the copyright things. It is possible to handle the copyright question, so it should also be possible to handle the takedown requests on personal data questions."

This opposite take doesn't make it any less wrong than Taylor's extrapolations. There's nothing simple about managing millions of takedown requests and there's nothing simple about post facto reputation management. Both rely heavily on the requester's statements being true.

The DMCA takedown at least contains the notification that filing a false request is the equivalent of perjury (not that this part is ever strictly enforced…). The EU webform simply asks the requester to agree that the above declarations are true. There's no real legal weight behind the form at this point, so the only deterrent is that each submission must be accompanied by a copy of the submitter's legal identification.

As we all know, there are plenty of bogus DMCA takedowns issued every year. Even otherwise legitimate takedowns can be littered with bogus URLs, thanks to many rights protection companies' decision automate the process. (And, apparently, save money by releasing takedowns without vetting them...)

So, while the number of "right to be forgotten" requests may be incredibly small as compared to the millions of piracy-related URLs submitted every day, the same problems will still plague both. Because the processes don't lend themselves to human curation thanks to sheer volume, legitimate content will still be de-listed and infringing/unwanted content will still remain just a search away.

Reding is correct about it being "simple" -- at least in regards to those submitting requests. Both operate via automated webforms, making the barrier to entry low enough that abuse is inevitable. Raising that bar a little would only result in citizens and rights holders complaining that Google has made the job of taking down infringing content/clearing one's name too difficult to be useful.

Both methods can be easily utilized but neither truly solves the problem. Both are games of whac-a-mole. Just as certainly as infringing content will show up somewhere else when sites are shut down and links removed, so will the negative content that European citizens are asking to have de-listed. As Google's webform notes, "we may inform webmaster(s) whose content is removed from our search results as a result of your complaint."

This stipulation pretty much guarantees the content will be reposted/rehosted. Detractors may complain that Google is purposefully inviting this sort of behavior and that notifying webmasters makes the requesters look like the "bad guys." (We've seen this complaint before in terms of YouTube notification screens -- both from musicians and GEMA itself. Both feel it's "unfair" that viewers are notified about who requested the takedown.) But this needs to be in place to provide for any defense of the disputed content. You can't just hand out one-way "rights."

Adding to the problem is the fact that there may not even be a specific party who can file a counterclaim. Or even have that option. The EU's decision specifically states the a person's "right to privacy" outweighs the public's right to know, which seems to indicate that filing a counterclaim may not even be an option if the takedown request is approved. This is vastly different from DMCA takedown notices, which state who's filing the claim and who the takedown request targets. If the claim is disputed, there are established routes to challenge the claim. The way the "right to be forgotten" is currently set up offers no clear avenue for disputes, nor any guarantee that those who have content de-listed will be notified. (Note the word "may" in Google's statement above.)

Reding sees this as an easy win simply because the number of "forget me" requests will always be outnumbered by infringing content takedown requests. But both expect Google to simply accept every request as undisputed fact. Rights holders have been complaining for years that Google doesn't do "enough" to combat piracy, even when it's de-listing millions of URLs every month. These complaints will inevitably be echoed by users of the new webform and proponents of this law in the near future. Perception is the new reality. If it's not fast enough or thorough enough or too many claims are disputed then all blame will be routed towards Google, even if it's the Commission's failure to comprehend the impossibility of what it's demanding. The internet is by no means finite, but Google's resources -- and reach -- are.

Reding is correct about one similarity: the pursuit of the "right to be forgotten" will ultimately be as futile as fighting piracy via takedown requests.

Filed Under: censorship, copyright, dmca, free speech, piracy, right to be forgotten, search engines, takedowns, viviane reding

British Recording Industry Thinks 'Right To Be Forgotten' Proves Google Can Stop Piracy

from the a-tale-of-two-web-forms dept

As the discussion over the EU's decision to force Google to uphold a "right to be forgotten" continues, various industry heads have begun to weigh in on the subject, pointing to this as evidence that Google could do more to combat piracy.

This, of course, is exactly the expected reaction. With every obliging move, search engines such as Google move themselves further and further away from providing "agnostic" search results. But what these entities are seeking goes much further than web forms. They still think Google should be able to de-list entire sites at the behest of any number of self-interested parties.

A recent article at the Guardian contains a number of recording industry leaders pointing in the direction of Google's "right to forget" compliance as an admission by the search engine giant that it has the power to (almost singlehandedly) kill off "pirate" sites. There's some confusion as to what Google actually does expressed here, although the worst of it seems to be relegated to the headline itself: "If Google can get rid of personal data, why can't it purge the pirates?"

The lede handles the subject much more accurately before the head of Britain's recording industry attempts to turn this into another reason why Google isn't doing enough to protect his interests.

Google's decision to allow users to easily de-list certain personal information from search results has infuriated a film and music industry that argues the internet giant should act as decisively to help squash digital piracy.

After laying down the facts, the rest is filled with badly drawn conclusions.

Critics say that Google drags its feet over carrying out measures such as stripping pirate websites from its search results, yet the move to allow users the "right to be forgotten" proves it can take serious action if it is forced.

"It's 'Don't be Evil' 101," says Geoff Taylor, chief executive of the music industry's trade body, the BPI. "The principle at stake here is when you know someone is acting illegally, you shouldn't continue helping them by sending them business."

There are several things wrong with Taylor's assertions. To begin with, Google "sends" no one any business. Google returns search results. Critics often claim that search results for content return tons of illicit results within the first few pages, but in order to make this happen, you have to include the sort of terms that someone looking to pirate might use. With enough intent, you can wring anything out of a search engine. This is not a problem that needs to be "solved" by the search engine.

The industry's own preferred referral services are, if anything, worse than the industry's skewed perception of Google's search results. As we pointed out a few weeks ago, the combined force of the UK's movie and television industry has resulted in a website that can't even locate legitimate purchase options for highly sought after content, while a simple search at Amazon will provide plenty of DVD and streaming options.

While critics may be right that Google can do certain things if "forced" to by government bodies, is this really the sort of goal they should be encouraged to pursue? Using the government to force one industry to cater to another industry's whims? The recording and motion picture industries seem to feel they should be able to de-list entire sites, something Google isn't allowing with its "right to forget" web form, just as it isn't allowing it with its DMCA takedown request form. Taylor feels this is wrong and that his industry should be allowed to de-list entire sites, including content that doesn't belong to anyone under its purview, simply by pushing a couple of buttons.

Geoff Taylor has more to add to this:

Dealing with Google is often a fraught process, Taylor adds, and the illegal websites reappear in the same, or a slightly different, guise almost immediately after they are taken down.

Presumably, Taylor means URL addresses. Once again, Google doesn't have the power (nor should it) to "take down" websites. Again, the URL is de-listed and won't appear in search results. In order for the content to be removed, a takedown request must be submitted to the site hosting the content. People like Taylor want to lay the problem at Google's feet simply because Google has given them one of the easiest and most user-friendly ways to submit takedown requests. Rather than make an effort, the industry wants Google -- a search engine -- to do the legwork for it. And now it wants entire sites de-listed.

"We have been calling for a long time for Google in particular to be more proactive in dealing with the issue of illegal content in its search results," says Taylor.

Google is not in the business of policing the internet for infringing content. That job belongs to the rights holders. How Taylor arrives at this misconception is beyond me, but he's far from the only industry head calling for Google to save them from problems they ignored for far too long.

How Taylor decides a new web form ("right to forget") signals greater capabilities than a pre-existing web form (the DMCA takedown) is also beyond me. Taylor is correct in his statement that Google's search algorithm is far from neutral, but he fails to acknowledge that it's been governments acting at the behest of industries that have made the most noise about the company's failure to rewrite the code to the specifications of the RIAA, MPAA et al.

And for all that noise, there's seemingly very little realization that pirates don't really use search engines for piracy.

Just 13% of illegal downloaders use search engines, including Google, to access music sites, and 8% for film sites, according to snapshot research by Ofcom.

So, even if the industry gets its way, there will be little noticeable effect.

But the bottom line is this: the new "right to be forgotten" form is roughly interchangeable with the DMCA takedown form. Neither remove content. Both only de-list URLs. The content still exists, but anyone using Google won't be able to find it... and that number represents only a small sliver of web users.

Somehow, these similar forms with similar results signal something much bigger to industry leaders like Geoff Taylor when, in fact, it should signal the exact opposite. Nothing has changed. Google will de-list specific URLs if given a legal reason to, whether it's a EU directive or its own compliance with the DMCA in order to retain its safe harbors. The belief that this means Google can (and should) de-list entire sites and further screw around with its algorithm in order to make the recording (and motion picture) industry happy is simply delusional.

Filed Under: geoff taylor, piracy, right to be forgotten, search engines
Companies: bpi, google

Germany Considers Setting Up A Special Court To Determine Who Can Demand To Have Embarassing Histories Deleted From Google

from the because-that-will-end-well dept

We recently wrote about a ridiculous decision in the EU Court of Justice, which accepted the bizarre concept of a "right to be forgotten" and ordered that Google had to delete links to old news stories about Mario Costeja Gonzalez even though those news stories could stay online. And, of course, this has set off a frenzy of folks seeking to have their embarrassing histories deleted, because, really, if you had an embarrassing public history, why wouldn't you?

And, within weeks, it's already reached the point that Germany is looking into setting up a special court to review such cases and determine what embarrassing histories Google will need to delete, and which embarrassing histories you'll need to learn to live with people finding on Google. Because... this is the ridiculous world we now live in (for those of you in Europe for now). At the very least, to some extent this can be seen as marginally positive. The idea behind creating this is to actually decrease the impact of the ruling, and to limit the ability for people to delete their histories. But, just the fact that you might need to set up a special court for this sounds insane.

Following a European Union court decision this month granting consumers the “right to be forgotten,” the Interior Ministry in Berlin would seek to establish “dispute-settlement mechanisms” for consumers who file so-called take-down requests. If search providers introduce automatic deletion, public information would be at risk, the ministry said.

“Politicians, prominent figures and other persons who are reported about in public would be able to hide or even delete reports they find unpleasant,” it said in a statement. The ministry suggested that the removal of information shouldn’t be left to company algorithms.

It seems some folks in Berlin recognize that public information might be at risk over this situation, but it's still troubling that a court gets to decide what public information is "legitimate" and which is not. And that, really, is the problem with all of this. While defenders of the "right to be forgotten" and the EUCJ decision keep referring to it as a "privacy" right, it is no such thing. If it was about private information, they'd have a point. But it's not. It's about public information.

It is silly to argue that public information should be forced to be made private after a certain point, and even more ridiculous to then put the burden on a third party to make that public information private. At the very least, having a special court slightly limits that burden, but just the fact that such a court would even be thought necessary should show how ridiculous and dangerous the original ruling is for public discourse.

Filed Under: courts, germany, right to be forgotten, search engines
Companies: google

City Of London Police Keep Shutting Down Websites With No Court Order

from the how-is-that-legal? dept

We've highlighted a number of stories recently about the City of London Police, who have partnered with a few legacy players from the entertainment industry, and are using a bunch of taxpayer money to try to shut down websites the copyright industry doesn't like -- based on no clear legal reasoning or authority. They often seem to just rely on their name and bogus threats to get registrars to kill sites -- a process that has been found to violate ICANN policies for registrars. However, most registrars just give in, because the City of London Police just look so damn official.

Over the weekend TorrentFreak noted that a few more sites have been shuttered based on no court order, no judicial findings, but just the City of London Police's say so. This includes FileCrop, a site that hosted no infringing files at all, but which is just a search engine. Once again, the police make no effort whatsoever to hide the fact that they're doing the bidding of the legacy entertainment industry -- directly linking to their favored sites and flat out saying that they're supported by BPI, IFPI, FACT and the Publishers Association. Whether or not the sites that are being taken down are, in fact, violating the law, everything about this process is highly questionable. Taking down websites without a court order is a blatant attack on free speech. And, yes, while the UK does not have the same free speech traditions as the US, it does still hold itself out as being a believer in free speech. It is difficult to see the shuttering of a website without any due process as little more than blatant censorship.

Perhaps even more troubling is the fact that this censorship is proudly done to support legacy industries who see the internet as something to be shunned and attacked. How would people respond if the City of London Police suddenly, with no court order, shut down BSkyB and proudly announced it was doing so with the support of the BBC? Or shut down AirBnB and announced it was doing so with the support of the British Hospitality industry? Or shut down EasyJet and did so with the support of British Air? Wouldn't people be outraged?

Filed Under: city of london police, domains, restistrars, search engines, takedowns
Companies: bpi, fact, filecrop, icann, ifpi, publishers association

Dangerous Ruling: EU Says Google Must Help People Disappear Stuff They Don't Like From The Internet

from the right-to-be-forgotten dept

For years now we've explained why Europe's concept of a "right to be forgotten" is a terrible, dangerous and impossible idea. The basic idea is that if you were involved in something that you're not happy about later, you can demand that the incident be stricken from the record... everywhere. It's a clear attack on free speech -- allowing people to censor others from saying truthful and accurate things about someone.

However, Europe continued to push forward with it, even after a report noted that such a rule was technically impossible. Of course, once it was put into an EU directive, someone sued Google, in an effort to have an embarrassing moment from their past deleted. Mario Costeja Gonzalez sued Google, claiming that a search on his name turned up information on him being forced to sell some land in the 90s to cover some debts, and that since the matter was settled, he wanted it deleted.

We were encouraged, last summer, to see EU Court of Justice Advocate General Niilo Jaaskinen tell the court that there is no such right under the European data and privacy directive, and that Google shouldn't be responsible for what it finds. Quite frequently, the EU Court of Justice listens to its Advocate General. Today, however, it chose not to, and issued an all around horrible ruling, in which it claims that Google is in fact responsible for making stuff disappear from the internet, even if that information is accurate. From the ruling:

Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.

Got that? Not only must search engines take down any links to such information posted by third parties, the interest of the person who is embarrassed by past actions has his or her rights override the "interest of the general public" in having access to that information.

While some European officials, such as Viviane Reding, claim this is a "victory for the protection of personal data of Europeans", that's not true. This is nothing more than a censorship law which will be wildly abused. As The Guardian's James Ball explains, this creates an impossible quagmire for basically any internet company:

This creates a real quagmire for any company offering up information online: after how long does a bankruptcy ruling become something that should be private? Is that different if the subject is a celebrity or a politician? What if they offered the information voluntarily (or sold their story) in the first place? How about drug use, or prostitution, or murder? What if a person stands for public office a few years after having their search records scrubbed?

If nothing else, deciding such issues on a case-by-case basis will require huge teams of compliance staff in every tech company (and probably most media companies), and will tie up courts on the limits of each provision for years to come.

He further notes how this ruling will have dreadful consequences for both free speech and the tech industry in Europe.

The result is either an eerie parallel with China's domestic censorship of search results, or a huge incentive for tech investment to get the hell out of Europe. Neither, presumably, is a remotely desirable result.

Either way, while we respect the Europeans' interest in protecting privacy, there are ways to protect privacy that do not come with a full out attack on free speech. You don't protect privacy by creating a broad censorship rule, but that's what the EU has done today.

Filed Under: censorship, eu, europe, privacy, right to be forgotten, search engines
Companies: google

US Judge: Baidu's Decision To Block Certain Sites Is Protected By The First Amendment

from the of-course-it-is dept

We were bothered a few years ago to see the usually insightful Tim Wu suddenly arguing that search engine results had no First Amendment protections. The idea seemed ludicrous. Search engine results are opinions from that search engine about what is the most appropriate response to a query. It is clearly a form of speech and thus should be protected. The specific question, however, has barely been tested in court. However, a new ruling makes it quite clear that search engine results are protected by the First Amendment. Of course, it's in a case where this may feel somewhat ironic: some activists had sued Chinese search engine Baidu for refusing to show results pointing to their own pro-Chinese democracy writings. They argued that this violated New York's "public accommodations law."

And while it may seem funny to think that a website that is clearly trying to block access to certain content is standing up for the First Amendment, the ruling gets it exactly right, in noting that search engines have every right, under the First Amendment, to make editorial decisions about what to include and what not to include:

In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial judgments about what political ideas to promote cannot be squared with the First Amendment. There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has explained, “[t]he First Amendment does not guarantee that . . . concepts virtually sacred to our Nation as a whole . . . will go unquestioned in the marketplace of ideas.” Texas v. Johnson, 491 U.S. 397, 418 (1989). For that reason, the First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Id. at 414 (citing cases). Thus, the Court’s decision — that Baidu’s choice not to feature “pro-democracy political speech” is protected by the First Amendment — is itself “a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism . . . is a sign and source of our strength.”

My first thought on hearing about the case was that there clearly should be no issue here at all, since Baidu is a private corporation, not a government actor. But the real issue is over NY's public accommodations law -- and whether or not that compels Baidu to "speak" in a certain way by changing its algorithms and results. It's that point that the judge is making. The public accommodations law cannot be used to compel speech in this manner, which leads him to properly note that Baidu's choices are a form of protected expression.

The judge highlights a number of similarly applicable cases, first comparing Baidu to a newspaper, in which editorial decisions are considered protected speech. Then it compares it more directly to a different, though in some ways similar, case -- Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, in which the courts said that private parade organizers can't be forced to include groups they disagree with:

The question in Hurley was whether Massachusetts could “require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey.” Id. at 559. The Court held that allowing the state to do so would “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion) (relying on Tornillo to invalidate a rule requiring a privately owned utility to include with its bills an editorial newsletter published by a consumer group critical of the utility’s ratemaking practices). “‘Since all speech inherently involves choices of what to say and what to leave unsaid,’” the Court explained, “one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’” Hurley, 515 U.S. at 573 (quoting Pac. Gas & Elec. Co., 475 U.S. at 11, 16 (plurality opinion)). Notably, the Court found that principle applied even though the parade organizers did not themselves create the floats and other displays that formed the parade and were “rather lenient in admitting participants.” Id. at 569. “[A] private speaker,” the Court stated, “does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor . . . does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication.”

In both of these cases, I would personally disagree with the choices made. I think it's awful that a Chinese search engine regularly attempts to block access to pro-democracy writings and I equally think it's ridiculous that various St. Patrick's Day parades actively seek to block gay, lesbian and bisexual groups from participating. Yet, in both cases, as private organizations, they have the right to decide what to include and not include. Just as everyone who finds those decisions despicable has the right to speak out against them.

This ruling may feel ironic in that it appears to further the cause of Chinese government censorship in the name of the First Amendment, but as Judge Jesse Furman notes, there's really nothing ironic at all in protecting the right of private parties to make their own editorial decisions, no matter how offensive they might seem.

Filed Under: blocking, chinese democracy, editorial choices, first amendment, free speech, search engines
Companies: baidu

Someone Please Tell Congress That 'Free' Is Not Illegal & Not To Lie About Bogus Search Results

from the they-don't-seem-to-know-that dept

We already wrote about how much of Thursday's House Judiciary Committee hearings seemed to focus on the ridiculous and dangerous concept of "notice and staydown," but that was hardly the only ridiculousness on display at the hearing about the DMCA's notice and takedown policy / internet safe harbors. If you've never watched a bunch of technologically clueless self-important politicians think they know better than actual engineers how to create a search engine, well, go take a look. During the Q&A, Reps. Judy Chu and Tom Marino spent a bunch of time complaining that when they did searches for the names of movies, plus the word "free," that Google sent them to links for (you guessed it) free (though unauthorized) options to watch those movies.

Chu -- who has become the MPAA's favorite person to feed bogus questions to (though sometimes they forget that they've already given the same questions to someone else) -- pointed out that she wanted to test out Google by typing "watch," plus the name of popular movies, specifically 12 Years a Slave and Frozen, and that among the autocomplete options, "watch 12 years a slave free" and "watch frozen free" popped up. To her, this was proof positive that Google is aiding infringement. She later is clearly reading off of notes she doesn't understand, and makes claims about how Google's algorithm works concerning demoting sites that get lots of takedowns that are simply not accurate, as she presents her own theories on how Google's algorithm should work. Because I'm sure she's programmed lots of search engines.

A little while later, Rep. Marino picks up on this thread (including a laughable claim in which he notes he wants less federal government, but on this issue, he wants more federal government). He directly asks the Google representative on the panel, Katherine Oyama, why can't Google not return any results if someone searches on a movie name, plus "free." Oyama quickly points out that "we can't strike the word 'free' from search, because there's a lot of legitimate, great content that is free." Marino immediately follows up by arguing that if someone searches for "free," that's obviously a problem and "there's gotta be a process... where that can be flagged." And then, bizarrely, he mentions that his two teenage kids are writing software programs and shakes his head as if he can't believe what a world we live in which people write software. And yet he thinks he can better explain to Google how its algorithm should operate.

In a blog post about the hearing, Matt Schruers notes that it's rather worrisome that elected officials are legitimately suggesting that "free" is somehow bad and should be censored:

One thing I didn’t anticipate was today’s fixation on the word “free” in search results. It is odd that in the United States the word “free” should be so stigmatized, but several members of Congress took issue with search results that contain the word “free,” apparently with the aim that such results should be suppressed.

Of course, every use of the word “free” is not unlawful, even in relation to content. Indeed, there is a considerable amount of free content online (including this site). Some artists give free content away for various legitimate reasons, such as promotional samples. “Free” is a time-honored marketing term, used liberally. Many rights-holders now wisely advertise when they are offering free content, e.g., “get a free trial to the song here”, to better compete with pirated alternatives, or to drive other revenue streams, such as live performances, subscriptions, merchandise. If services started blocking content online using the term “free,” this could easily penalize lawful services providing promotional content in order to crowd out infringing options.

That's an important point. You can also point out that if people are doing a search on a movie name and "free," they're probably not that interested in paying. But, the much more important point -- which Oyama tried to point out to both Chu and Marino (and which they both ignored) is that almost no one actually does the searches that has the two of them so upset. I figured I'd check. Here's the Google Trends report for the terms "12 years a slave" "watch 12 years a slave" and "watch 12 years a slave free." The yellow line is the name of the movie. The blue is "watch 12 years a slave" and the red line that barely gets off the bottom is "watch 12 years a slave free." You'll note, almost all of the searches are for the name of the movie. Very, very, very few searches are done with the "watch" opening. And significantly fewer are done with "free" after. In other words, no one is doing the searches that has Chu and Marino so worked up. And here's the same same thing for "Frozen" "Watch Frozen" and "Watch Frozen free" with the same basic results: If this looks vaguely familiar, it's because just a few weeks ago, we called out a silly news report that did the same thing with the search term "watch house of cards." After we showed, via Google trends, that no one does that search, even the reporter on the original piece went back and edited his piece to note this fact. But, once a story is out there, it's hard to kill it off -- and I recently heard from a reporter who told me that MPAA-connected people were out pushing that original bogus "watch house of cards" story to try to drum up more press coverage on it. And, sure enough, later in the hearing that exact example came up -- by someone who clearly didn't understand the details.

Rep. Ted Poe goes on this bizarre and ridiculous rant about how he just hates thieves. And, of course, he equates infringement to thievery, despite the rather important differences you'd hope an elected official and lawmaker would know (though it's clear Poe does not). He tops this off by flat out lying at the hearing, suggesting that while sitting there he did a search on Google via his iPhone for "house of cards" and the top results were links to infringing sites. That's simply not true. At all. As plenty of others quickly checked the search and saw, the links are all perfectly legit. And yet, he then demands of Google, how can it stop this thing that isn't actually happening from happening. Oyama immediately points out that if he actually did a search on House of Cards he'd see only legitimate links. Poe cuts her off:

Oyama: House of Cards is a great example. It feeds into the example of "what type of results are showing up." So if you Google "house of cards" take a look at what's there. It's going to be legitimate stuff. It's going to be the show's website... and things about the actors... in terms of feeding back into the search trends conversation...

Poe: Just a second, let me interrupt, because you've already lost me. Pull up House of Cards, I think I see the valid House of Cards but I think I see some thievery going on like the second and third and maybe the fourth one. How does that happen?

These are our elected officials. Oyama is telling him that the search doesn't have unauthorized links, and he immediately cuts her off saying she "lost him" and demanding she explain how something that isn't happening is happening. Not only that, but he incorrectly believes that there is only one "valid House of Cards" link. Oyama tries again to respond to this, and Poe still isn't having any of it, bizarrely then asking her how an unauthorized provider might get better rankings.

Poe: Okay, I'm a thief. I'm stealin' House of Cards. How do I get it to be number two when you pull up "house of cards"? That's my question!

Oyama points out "it's not number two" and Poe still doesn't get it.

Poe: Okay, three, four. Right up near the top.

Oyama again points out that he's just wrong. It's not near the top. And Poe gets sarcastic with a giant smirk:

Poe: Oh? Those are all legitimate sites?

Clearly, someone had taken the original silly argument that we had debunked, and given Poe some sort of summary that he didn't understand, leading him to make the bogus claim that (a) he had done the search, when he clearly hadn't, and (b) which then resulted in him going on and on about how search results that don't actually appear could possibly appear, and how Google could stop those results that don't appear from appearing.

And these are the people who are planning to rewrite our copyright laws?

Filed Under: copyright, dmca, free, judy chu, katherine oyama, search engines, search results, ted poe, tom marino
Companies: google