Google should defy court order

Has it struck anyone else that Google has been rather weak-kneed in its response to the court order requiring it to turn over YouTube viewing logs to Viacom? Google’s entire business is built on our trust that the privacy of all that personal information they have about us will be protected. Yet in this situation, one in which legal experts have pointed out that the judge is actually ordering Google to violate existing privacy law to our detriment, the company appears to be rolling over with a feeble plea that Viacom allow them to “anonymize” the data they yield.

As this controversy raged the last few days, Google tried to assure us all that it “will ask Viacom to respect users’ privacy and allow us to anonymize the logs before producing them under the court’s order.” And Viacom apparently is trying to be reassuring as well, saying that “we will not use any of this information to enforce rights against end users” and that they don’t really want any personally identifiable information, even though that’s what the court in its technical ignorance ordered Google to deliver.

Frankly, I’m not willing to buy the assurances of Google, Viacom, or the court that our privacy rights are going to be honored with any data that changes hands here. For one thing, any anonymizing that Google does will entail at least the possibility of it manipulating the evidence Viacom hopes to find. On the other hand, the whole idea of Viacom screening YouTube viewing records to determine what percentage of it was infringing content is laughable. Is Viacom going to study in detail each and every YouTube posting to make sure the use of a news broadcast clip or any other copyrighted material wasn’t fair use in that context? I’m sure if Viacom counts any little snippet of “The Daily Show” posted on YouTube as infringing material, it will also count every snippet Jon Stewart uses from other media outlets’ broadcasts as infringements that require reimbursement by Viacom. Right.

Simply put, the judge’s order sets up a fishing expedition that will inevitably result in highly-disputable “evidence” from the point of view of both sides. And for this the judge has dismissed the very idea of users having privacy rights as “speculative” and ordered Google to violate the Video Privacy Protection Act? This puts Google in the hat-in-hand position of begging Viacom to respect its users’ privacy, while Viacom has no reason not to push for all the data it can get. So even if Google and Viacom publicly agree on some kind of scrubbing mechanism for the database, I’m not sure we can trust either of them that any data turned over won’t contain personally identifiable information.

In case anyone had any delusions, we certainly can’t trust any of Viacom’s promises about not using the information to go after end users. For instance, even if the court order does – as some reports have indicated — have a secret ban on such use, how would end users accused of copyright infringement at some unknown future point prove that these records weren’t used to make the case against them? After all, the RIAA sends out sweeping accusations of copyright infringement by end users all the time without detailing their sources of information. And in my next story we’ll look at another outfit that’s made a lucrative business out of threatening end users with very dubious copyright claims.

But this case is really all about Google and how much we can trust that company. Since the order does violate existing privacy laws, there’s got to be plenty of ways Google can find to defy it. Hey, if you have enough money behind you, you can eventually get the courts or Congress or the Attorney General or somebody to give legal benediction to what you did. Google has enough money.

If this court order is complied with in any non-transparent way, the victims are you and me. Even if they have to risk losing this particular case because of it, Google must realize that there’s a lot more at stake here than one measly multibillion-dollar lawsuit. Not one bit of YouTube data should be given to Viacom unless we can all clearly see it contains no personally-identifiable information. The time has come for Google to show us whether it really can be trusted with all the deeply personal stuff it collects and saves about us all.

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