Saturday, February 04, 2006

Because I Can

NYTimes 4 February, 2006: "Increasingly, Internet's Data Trail Leads to Court"

I've followed from a distance the story on Google's resistance to the Justice Department's efforts to procure records of users' search queries. Google is currently the lone "holdout" among the top companies approached; others include Yahoo, AOL, and Microsoft.

The contest seems to be more about a "next" move in a grab for information than a startling "first move" to invade strongholds of information or to violate issues of privacy. Episodes of Law and Order I recall watching during days before graduate study play in echoes as I try think through this topic: "Run the phone logs" or "get a record of her phone calls" represents a action now being argued as comparable to the request for a users search records, but is it? Is this a parallel connection? I think not.

Perhaps email records run parallel: they are a record of information exchanged person-to-person, but "searching" online might be thought more akin to scoping out a mall or driving through a neighborhood. Sure, these activities could lead to the enactment of a crime, but the millions upon millions of us who have and/or act with no criminal intent must not be made subject to the arbitrary disclosure of our "virtual" movements simply because it could lead to the apprehension of a criminal.

I think in terms of "arbitrary" after reading the NYTimes article and learning that it takes no more than the request from a prosecutor to validate the mandate for a release of user search records - in contrast to emails, for example, that require the signature of a judge. (Postal mail can't be opened without the authorization of a search warrant.) Of course, the issue becomes more pertinent when the application of the law reaches past the criminal courts to legal action including divorce, property, or child custody cases. What might have seemed a straight-forward matter can more easily touch the experience of "invasion of privacy" there. Careful thinking might best be attended before the reach of the law is given so free a hand. It is one thing to speak to the safety of a citizenry when "an enemy" is made to seem so real; it is another thing to deal with the same laws if the day should ever come when WE become thought the enemy.

"The big story is that the privacy law protecting your e-mail does not protect your Google search terms," said Orin S. Kerr, a professor at the George Washington University Law School and a former layer in the computer crime section of the Justice Department.

Other Lawyers argue that the law providing protection for e-mail content, or even Fourth Amendment protection against unreasonable searches, could be applied to data about Web searching, but the issue has not been tested in court.
As I think about all this today, I come to a place of imagining that our efforts to govern the WWW might be better mediated if we were to conceptualize the "space" of information on the Internet more along the lines of "place," a geography of sorts. Certainly lots is being said in this direction already - I'm not saying anything new as far as many are concerned. Locking down URLs is a practice, for example, now commonly referenced as a virtual "land grab." The thought is, nonetheless, new enough for me as to imagine we might govern better if we governed as if remembering that virtual interactions are as much about place as about information.

I extend a tip of the hat to Google for its resistance, if on no other basis than for a slowing down or a second look that it is prompting for those who might not have noticed another bit of their civil liberties being "attached" just because they could be. "Because I Can" governs so large a bit of my human nature as it is that any resistance to that license seems a benefit to us all.

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1 comment:

Winston said...

I too nervously applaud Google's resistance. It may be too little and too late, but at least they are making the effort to use and preserve what we have left of our diminishing rights to privacy and free speech. The question is quickly changing from "how long will it take" to "can our former system of government be saved at all" after the Bush administration has finished destroying it. We may already have passed a point of no return...