Archive for March 2010


“Don’t be evil” meets “Do no harm”

March 1st, 2010 — 3:33pm

Last week, an Italian court gave three Google executives six months’ suspended sentences. Their case dealt with a video uploaded on YouTube in Italy, giving the court (and the prosecutors) jurisdiction. The video, which showed a group of teenage boys bullying another with autism, quickly became an Internet sensation. A couple of weeks later, Google received a complaint and removed the video within three hours. By then over half a million people had viewed it. The Google executives were deemed guilty of violating privacy laws.

In the real world, most issues worth reflecting on – like this one – have no simple answers. This one asks us to weigh the relative benefits of privacy and free speech. I don’t know all the possible arguments people made about this case, but I’ll address a few that I heard repeatedly.

The first ignores the specific details of the case and suggests it was a cynical ploy by the billionaire Italian Prime Minister Silvio Berlusconi to clip the power of the Internet since it was threatening his vast “old media” empire. I don’t know much about the Italian judicial system, but if one has a reasonable understanding of realpolitik and of Mr. Berlusconi’s repeated cavalier disregard of a variety of laws, this view is hard to dismiss as a ridiculous conspiracy theory. If true, the court’s decision could have a very negative impact around the world.

It isn’t unheard of for ruthless executives to take unethical, albeit legal, positions to further their ends. The big deal here is that this decision was handed down in a Western democracy on an issue with very high stakes. Undoubtedly, many ruthless people are currently assessing how they could win similar rulings in their bailliwicks. The Ahmadinejads and Mugabes of the world are preparing arguments along the lines of “But this is acceptable in the West.” So, the decision has made the world much more fraught with risk for decent people.

The second viewpoint has attracted most commentators. In essence, it compares the Internet to traditional communications – like telephones and the post office. Telephone companies aren’t subject to criminal charges when their equipment and services are used to plan crimes, no matter how nefarious. So, why should companies like Google?

I am not a lawyer, but for me, this argument doesn’t have legs. Progress in laws generally always lags progress in technology. In The Spider’s Strategy, I argued that our legal systems haven’t caught up with the fact that sense-and-respond capabilities are erasing the traditional boundaries of companies and taking us into uncharted territories. So, inadequate laws shouldn’t be a defense here.

Besides, Google’s defense was that it took down the video within 3 hours of being informed about it. The real question is: should it have acted proactively? After all, when I go to my local post office, I am routinely, proactively asked to confirm that the letter or package I am shipping has nothing dangerous in it. Legally, the post office doesn’t have to ask me (at least not that I know of!), but it is commonsensical for them to do so, if for no other reason than to protect its own people. I am sure that if I give them cause for concern, someone will take some proactive action and at least screen my package. Indeed, increasingly, the post office is trying to screen all packages.

But Google responds that every second, twenty hours of video are loaded on its systems around the world. They just don’t have the ability to screen everything. This argument also seems specious. Google doesn’t have to screen everything. However, can’t – doesn’t – it have filters to screen on an exceptional basis? If a tag or a comment says “school yard bully” couldn’t that particular video be checked out? Let’s assume that this filter would itself get swamped by volumes. How about using an additional decision point? “If a video hits 100,000 views or if a video is shooting up the popularity index very rapidly, check its appropriateness.” Saying “We want the right to search every book in the world and make money out of giving people access to these” seems incompatible with “We can’t possibly be expected to scan every video – or even a fraction of the videos – currently on our system.”

The third viewpoint focuses on biases rooted in the divergent histories of people around the world. Americans favor the freedom of information over all else because its national birth was in part driven by the oppression of a government using information inappropriately. That’s why it is the First Amendement to the US Constitution (part of the Bill of Rights which enshrines the first ten amendments); the Consitution was adopted on September 17, 1787 and the Bill of Rights was adopted on December 15, 1791. In contrast, there is no explicit “right to privacy” in the US Constitution or its amendments; this right was imputed to exist (on the basis of several of the other Bill of Rights amendments) as late as 1965 by a much disputed ruling of the US Supreme Court.

In contrast, Europe has suffered severely as a result of a lack of a fundamental right to privacy. Throughout history, dictators and totalitarian regimes have terrorized their people by collecting huge amounts of secret information and using these to justify punishments, torture and killings. And so, it is no surprise that Article 8 of the European Convention on Human Rights says, “Everyone has the right to respect for his private and family life, his home and his correspondence.”

Supporters of the “information first” logic point out that today’s totalitarian states block access to information, particularly that acquired through the Internet. So, Google rightfully stood by its corporate motto and “did no evil:” It shouldn’t have – and didn’t – act preemptively to block the video, but took action when it was appropriate. Supporters of the “privacy first” logic, (which, incidentally, the Italian court adopted) argue that Google had a fiduciary responsibility to protect the autistic child’s right to privacy. Above all, Google should have “done no harm.”

In the years to come, we will face the two facets of this third viewpoint over and again. Sense-and-respond capabilities will not only benefit businesses and society, but will also raise this issue in ways that we can’t even imagine. (For example, listen to “Different Strokes.” This “On the Media” program from National Public Radio discusses technology that tracks where someone goes on the Internet on the basis of his/her typing pattern.)

My own bias is towards privacy; I think it will increasingly become hard to live as an individual unless privacy safeguards are strengthened. And the day when this becomes a real issue for everyone is not far off; it will happen, as I’d indicated to a pharmaceuticals industry audience in May 2002, because of genetic-profile based medicine. Even “open information” stalwarts in the US will have to think about whether they want companies and governments to have unfettered access to their own specific genetic structures. That is why I did not howl in protest when I read about the Italian court’s decision – but as I indicated in my discussion of the first viewpoint, I am not one hundred percent convinced that it was the right decision.

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