One form of Chinese censorship is to block searches for “sensitive info” such as Tiananmen and Falun Gong. If a web post is made in a forest and no one can find it, does it convey information? Another is to scour domestic websites for sensitive info such as Tiananmen, Falung Gong, –and Google, and instruct webmasters to delete it.  Around the time that Google stopped censoring Chinese search results and began referring Chinese searches to its Hong Kong servers

[]he Chinese State Council Information Office . . . ordered all news sites to “carefully manage the information in exchanges, comments and other interactive sessions” and “clean up text, images and sound and videos which support Google, dedicate flowers to Google, ask Google to stay, cheer for Google and others that have a different tune from government policy.”

A few years back Rescuecom sued Google federal district court (N.D.N.Y.) for Lanham Act claims of trademark infringement, trademark dilution, and false designation of origin pursuant to 16 U.S.C. §§ 1114 & 1125.  Rescuecom’s claim rested on Google’s sale and use in its AdWords program of the Rescuecom mark, Rescuecom arguing that allowing its competitors to trigger views of their own ads in response to searches for Rescuecom violated its rights as a mark owner.  The trial court dismissed Rescuecom’s complaint on Google’s 12(b)(6) motion, ruling that Google did not use Rescuecom’s mark in commerce. Rescuecom appealed and in 2009 the Second Circuit ruled that its complaint did state a claim on which relief could be granted, reversed the trial court’s dismissal, and remanded for further proceedings.

Nothing happened in the case until last week when Rescuecom declared victory and dropped its suit.  Why it believed the post-Second Circuit status quo represented a victory is unclear.   (Sample headline, from Eric Sinrod’s column:  Rescuecom Delcares “Victory” Against Google:  Oh Really?)  Rescuecom explains that Google has changed its AdWord practices regarding use of trademarks and no longer suggests Rescuecom’s mark through its Keyword Suggestion Tool, and that it obtained what it wanted from the suit.  Commentators have responded skeptically to Rescuecom’s explanation.  Rescuecom is itself a defendant in a lawsuit filed by Best Buy, claiming that Rescuecom’s use of Best Buy’s “geek squad” mark in its keyword advertising violates Best Buy’s rights in the mark.  One commentator called Rescuecom’s position in the Best Buy suit as “intrinsically inconsistent” with its claims against Google.  Et tu, Rescuecom?

Vancouver property owners and an arbor service have been charged with illegal removal of trees from the owner’s property.  A Vancouver bylaw requires property owners receive a permit to remove trees greater than 20 cm in diameter, and the owners have been charged with the unpermitted removal of over 20 trees.  The penalty for each violation can range between $500 and $20,000.   What caught my attention is that a vehicle taking photographs for Google Street View recorded the tree removal:  “[t]he photograph shows a truck on the site, along with a couple of workmen, tree debris, and a line of tree stumps along the length of a fence.”  A city spokesperson was not sure whether or how the Google photo would be used in the case.

Google Street View also figured in a Third Circuit Court of Appeals decision this week to reinstate the  lawsuit against Google filed by in 2008 Aaron and Christine Boring (seriously) for invasion of privacy, trespass, and other claims.  According to the decision

The Borings, who live on a private road in Pittsburgh, discovered that Google had taken “colored imagery of their residence, including the swimming pool, from a vehicle in their residence driveway months earlier without obtaining any privacy waiver or authorization.” They allege that their road is clearly marked with a “Private Road, No Trespassing” sign, and they contend that, in driving up their road to take photographs for Street View and in making those photographs available to the public, Google “disregarded [their] privacy interest.”

The trial court dismissed the Borings’ privacy claims (which it treated as claims for intrusion upon seclusion and unreasonable publicity given to another’s private life) “because the Borings were unable to show that Google’s conduct was highly offensive to a person of ordinary sensibilities,” and dismissed the trespassing claim because the Borings’ failed to allege facts showing that the trespass damaged them.    The Third Circuit affirmed the trial court’s decision on the ruling on the privacy claims, ruling as to both that “[n]o person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there.”   On the trespass claim the court noted that it is a strict liability tort and the trial court erred in apparently reading a damages element into the prima facie case of trespass.  The Third Circuit reinstated the trespass claim, noting however ” it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day.”

Street View van has not visited my street.  Maybe someday.

Sphere: Related Content

]]> http://trudalane.net/2010/02/05/google-street-view-in-the-news/feed/ 0 http://trudalane.net/2009/10/04/google-trial-begins/ http://trudalane.net/2009/10/04/google-trial-begins/#comments Sun, 04 Oct 2009 04:06:04 +0000 David Randall http://trudalane.net/?p=1881

In 2006 a video was posted on YouTube of four Italian teenagers taunting another teenager with Down’s Syndrome.  Some months later Italian authorities notified Google of the video.  Google removed it, but its troubles did not end.  Civil and criminal charges were brought against four Google executives for violating Italian privacy law by not obtaining consent to show the video from all those who appear in it, and for failing to have adequate content filters in place to prevent the video’s  posting.  After many delays the criminal trial started this week in Milan.  The defendants face imprisonment for up to three years.  Section 230 of the Communications Decency Act would shield Google and its executives from civil and criminal liability if the event happened in the U.S., but Italian law does not provide similar protection.

Last year a Pittsburgh couple sued Google in federal court for invasion of privacy because photographic images of their home appeared in Google’s Street View.  They claimed $25k in damages for “mental suffering” and sought removal of the images.  Yesterday the trial court threw out their suit for failing to state a claim–in other words, the facts underlying the suit, even if true, did not violate any legal rights.  The Street View images “capture images of their house beyond signs marked ‘private road.’”  The problem is that if the pictures were taken from someplace where the public has a right to be, there is no reasonable expectation of privacy for anything captured in the pictures.  This is not new law, and I hope their lawyer advised them this case was a loser.  I don’t blame the couple for not knowing the law.  U.S. privacy law is a patchwork quilt that leads to much confusion about the scope of protection.  In an ironic corollary–if something totally predictable can be ironic–filing the lawsuit eroded the couple’s privacy more than the Street View images.  The lawsuit contained their home address and a photo of their home appeared on the property assessor’s web site.

There’s news today about Cuil–pronounced “cool”–a new search engine created by former Google techies.  Based on my comparison so far I’m not ready to replace “google that” with “cuil that” in my lexicon.  I searched <david randall blog> with both Google and Cuil.  Google returned “A Foolish Consistency” as its fourth item–a surprising result, actually.  There are many David Randalls out there and I didn’t expect anything close to the top ten.  Cuil didn’t list this blog in the top ten and, when I clicked on the additional pages links, I received the message that it found no results for my search.  That just ain’t so.  I also searched for <PDF creator open source>, to add a PDF printer to this computer I’m using in Maine.  Google’s first item was the SourceForge page for PDF Creator, exactly what I’m looking for.   Cuil returned one link, to Open Source Licenses by Category, which did not include direct links to any PDF creation programs.  Two searches is not statisfically significant data pool and I’ll continue to compare the two.  Don’t set off the fireworks yet.

The NSA is not the only one monitoring every move you make, every breath you take. In their desire to anticipate our wants and needs before we know them ourselves, the New York Times reports that major web companies–Yahoo!, Google, AOL (it’s still around? I’ll be damned)–are “gathering clues about the tastes and preferences of a typical user several hundred times a month.” They too are ever-careful not to abuse our privacy and besides, “the data [they collect] is a boon to consumers, because it makes the ads they see more relevant.” You know what would be even more of a boon than more relevant ads? Fewer ads.

The NSA is not the only one monitoring every move you make, every breath you take. In their desire to anticipate our wants and needs before we know them ourselves, the New York Times reports that major web companies–Yahoo!, Google, AOL (it’s still around? I’ll be damned)–are “gathering clues about the tastes and preferences of a typical user several hundred times a month.” They too are ever-careful not to abuse our privacy and besides, “the data [they collect] is a boon to consumers, because it makes the ads they see more relevant.” You know what would be even more of a boon than more relevant ads? Fewer ads.

A story in yesterday’s Wall Street Journal titled NSA’s Domestic Spying Grows as Agency Sweeps Up Data (subscription required) reports that–

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called “transactional” data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA’s own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge’s approval when a link to al Qaeda is suspected.

The NSA’s enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world’s main international banking clearinghouse to track money movements.

The effort also ties into data from an ad-hoc collection of so-called “black programs” whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.

An NSA spokeswoman stated that the Agency “strictly follows laws and regulations designed to preserve every American’s privacy rights under the Fourth Amendment to the U.S. Constitution.” If you find comfort in that statement, consider this description of how the Agency uses its expanded domestic surveillance authority to pursue leads:

If a person suspected of terrorist connections is believed to be in a U.S. city — for instance, Detroit, a community with a high concentration of Muslim Americans –the government’s spy systems may be directed to collect and analyze all electronic communications into and out of the city. The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.

The information collected “doesn’t generally include the contents of conversations or emails.” Generally. That’s a word we lawyers use to say “most of the time we don’t, unless we do.” Even without such content the NSA can identify the parties to phone calls and emails, their locations, and their cell phone numbers. The telecoms enable the NSA’s efforts either by copying all data through their switches to share with the NSA, or by ceding control to the NSA over the switches. The White House is pushing a bill that would immunize the telecoms from liability for privacy claims arising from this data collection. The NSA domestic surveillance program includes elements of and technology from the Pentagon’s Total Information Awareness initiative that Congress defunded in 2003 following criticism of TIA’s potential for civil rights abuses. Before it was killed the Pentagon renamed TIA to Terrorist Information Awareness to make it seem less creepy. Now the NSA is implementing TIA through its “black budget,” beyond effective non-NSA scrutiny.

The Journal story reminded me of a recent Wired column by the always-prescient Bruce Schneier: What Our Top Spy Doesn’t Get: Security and Privacy Aren’t Opposites. Schneir’s column focuses on a proposal from National Intelligence Director Michael McConnell to monitor all–”that’s right, all–” Internet communications:

In order for cyberspace to be policed, internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer or Web search. “Google has records that could help in a cyber-investigation,” he said. Giorgio warned me, “We have a saying in this business: ‘Privacy and security are a zero-sum game.’”

This states it as baldly as one can. This administration’s top intelligence personnel consider every increase in security to require a corresponding decrease in privacy. As Scheier states “I’m sure they have that saying in their business. And it’s precisely why, when people in their business are in charge of government, it becomes a police state.” Scheier says privacy versus security is a false dichotomy, that the true dichotomy is between liberty and control–and that “liberty requires both security and privacy.”

Legal Blog Watch has a brief post about the threat of the Google trademark passing into common usage, or going generic. There’s nothing Google can do about us regular folks using Google as a verb–”I Googled that guy and he turned out to be a creep”–or as a substitute for the noun “search.” Those are a function of extreme brand penetration. What somewhat more troublesome for Google is generic usage by commercial actors such as the media. The New York Times ran a story this week about how more people are “Googling themselves.” (A pointless pastime with a name like David Randall–there may only be one of me but there are too many of us.) For at least the past couple of years Google has reminded users not to engage in this type of usage, and a well-placed cease and desist letter to The Times or other media outlet will help curb the practice. It may be counterintuitive given the ubiquity of Internet publication, but I think there is less danger of a mark passing into generic usage now than in times past. Companies are more keenly aware of the value of their brands, devote more resources to protecting them, and because of the Internet can track troublesome or infringing uses more readily and come down on malefactors like grim death. It’s the same problem brands like Xerox -one photocopies a document, one does not Xerox it–and Kleenex–as you were about to sneeze when was the last time you shouted “pass me a facial tissue!”–have faced. The key is to manage common usage so it never gets to the point where competitors use the erstwhile brand to describe their own products.

*A lifetime subscription to anyone who identifies the movie title echoed by this tagline.