Chapell & Associates

Wednesday, March 01, 2006

Internet Users Oppose Storage of Queries

Washington Post - February 22, 2006
Most Americans are uncomfortable with the fact that Internet search engines record their users' queries, according to a survey released Wednesday that examined perceptions about federal authorities' demands for such records. Search engine companies recently sparked the debate by responding differently to the Justice Department's subpoena for records on what their users had been looking up.

The Chapell View
Out of the recent debate over the Justice Departments subpoena of Google, Yahoo! and other search engines requesting past search terms (ostensibly, to verify that a law designed to keep minors away from online pornography is ineffective) comes another controversy: should search engines even be collecting and storing this information in the first place?

CNET added to the controversy by asking search engines about what information they collect and how long they store it about two weeks ago. And Congressman Edward Markey (D-MA) has recently proposed a bill that would limit the ability of any online business to collect and store information about consumers.

Now, as reported by the University of Connecticut, 60 % of Americans say they are opposed to search engines collecting past searches they conduct. At first glance, this may seem somewhat surprising: search terms aren't the most sensitive information, and generally aren't considered personally-identifiable. While it may be possible, given a particular search history, to track down the IP address they come from, the potential harm to consumers seems relatively limited.

The real point may have less to do the sensitivity of the data, though, and more with the data's collection and use. Why? Because for most consumers, the collection itself was unexpected, and they don't have any idea what use the information is being put to. Most search engines state in their privacy policies that they will provide information to government agencies if they are legally impelled to do so - but for many web users, hearing that the Justice Department has subpoenaed search terms may the first time they were made aware that this data was being collected.

Intuitively, consumers may start to think about the 4th Amendment and government searches. If data was being collected, unbeknownst to them, and for a purpose they can't see - and is now accessible by the Justice Department - well, maybe it's less surprising that they're opposed.

Ultimately, it seems somewhat unclear to me whether the subpoena for search terms is in line with the 1986 Electronic Communications Privacy Act, which prevents the government from accessing electronic communications without having gone through the "proper procedures."

The government's argument - in essence - is that web users don't have a reasonable expectation of privacy regarding the search terms they enter into search engines and/or the sites we visit while online. In other words, they argue, they can seize this info. One can only assume that they're basing this argument on the privacy policies submitted by the search engines and/or websites (i.e., we will turn over info to the govt, et cetera).."

Now, if the Justice Department is saying that terms buried in a privacy policy can provide meaningful notice to consumers, it doesn't make much sense for the FTC to tell us - as they often do - that burying similar terms in a privacy policy is deceptive. There's something of a contradiction here: are these statements reasonable notice or not?
posted by Isaac on Wednesday, March 01, 2006

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