Vogel Internet, Information Technology, and e-Discovery Blog : Texas Internet, Information Technology, eCommerce, & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

A new feature on Google called Interactive Account Manager now allows Google users to selected trusted contacts to receive data from many Google services. On April 11, 2013 posted a blog entitled “Plan your digital afterlife with Inactive Account Manager.” Amusingly enough Google admits the title for the new service “not a great name” but does allow Google users to:

• choose to have your data deleted — after three, six, nine or 12 months of inactivity.
• select trusted contacts to receive data from some or all of the following services: +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube.

However before Google takes any action Google will “first warn you by sending a text message to your cellphone and email to the secondary address you’ve provided.”

Facebook allows accounts to be memorialized, but not to allow access to accounts by loved ones.

Google’s new Inactive Account Manager appears to be unique, but brought about because many families have been denied access to Internet and Social Media content after their loved ones die since no such digital afterlife had been planned before.

ABC News reported in February 2013 that a proposed bill in New Hampshire that “would allow control of someone's Facebook, Twitter, and other accounts such as Gmail to be passed to the executor of their estate after death.”  Also ABC reported that:

Five other states, including Oklahoma, Idaho, Rhode Island, Indiana and Connecticut, have established legislation regulating one's digital presence after death. Rhode Island and Connecticut were first, but their bills were limited in scope to email accounts, excluding social networking sites.

Surely we will see more new laws for Internet Wills and more such services for digital afterlife from other Internet and Social Media sites.
 

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FairSearch.org filed a complaint with the EU asserting that Google’s use of the Android operating system dominates the mobile marketplace and is anticompetitive. FairSearch states that it “is an international coalition of 17 specialized search and technology companies whose members include Expedia, Microsoft, Nokia, Oracle, and TripAdvisor.” In the complaint FairSearch states:

Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data,… Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google’s Android operating system.

Google clearly dominates the search market as Forbes reported that according to eMarketer “that Google controls 56% of the mobile ad market and 96% of its search ad segment,” and Strategy Analytics reported that Android’s share of the global smartphone market has surged from 51% to 70% by the end of 2012.

So given the fact that the EU already investigating antitrust charges against Google this may make things worse for Google, so stay tuned to see how Google fares.

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Just as Google proposed a settlement with the EU, on January 30, 2013 i-Comp filed a new complaint of antitrust charges about which Bloomberg reported that Google’s “search results discriminate against competitors.” I-Comp is led by Microsoft and posted on its website: 

By creating an illegal network of exclusive relationships with these important partners, Google achieved its key objective: gaining scale for itself while preventing its rivals from doing the same,…

MSN News (published by Microsoft) reported: 

• If the commission accepts the proposals under its settlement procedure, it would mean no fine and no finding of wrongdoing against Google. 

• Companies found to be in breach of EU rules can be fined as much as 10 percent of global turnover, which could mean up to $4 billion if there is no satisfactory resolution in Google's case.

It is significant that comScore estimates that Google accounts for about 82% of all EU searches and about 67% of all US searches.

Since the FTC concluded that Google did not violate US antitrust laws in early January 2013 the new EU antitrust claims do not allow for a swift settlement as apparently Google hoped. 

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FTC Chair Jon Liebowitz is resigning after 4 years during which he “pushed for online privacy protections and sought to restrain unfair competition,” but as the New York Times reported he “stumbled in an attempt to rein in the Internet search practices of Google”:

Competitors, advertisers and some consumer advocates had complained that Google manipulated the results of its Internet searches to give top priority to results that featured companies in which it held an interest, while punishing those that were a competitive threat.

The Washington Post speculates that the new Chair could be “other Democrats on the commission, Julie Brill and Edith Ramirez,” but Chair's departure:

...will create at least a temporary partisan split, with two Democrats, two Republicans and one seat empty until President Obama can gain confirmation for a nominee. Such 2-2 divides on the five-member commission are not uncommon during transitions, but they can make it difficult to chart a forceful path for the FTC.

No one knows about the future of the FTC, but given its role to manage privacy on the Internet in the US it will be interesting to see who is selected, and also to watch the confirmation process to see what the Senate is concerned about.
 

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The FTC and Google reached a landmark agreement regarding allegations of antitrust behavior by Google regarding Google search engine. But also the settlement allows competitors of Google’s “on fair, reasonable, and non-discriminatory terms – to patents on critical standardized technologies needed to make popular devices such as smart phones, laptop and tablet computers, and gaming consoles.”

The FTC included the following statement about Google’s search engine:

The evidence the FTC uncovered through this intensive investigation prompted us to require significant changes in Google’s business practices. However, regarding the specific allegations that the company biased its search results to hurt competition, the evidence collected to date did not justify legal action by the Commission.

Undoubtedly, Google took aggressive actions to gain advantage over rival search providers. However, the FTC’s mission is to protect competition, and not individual competitors. The evidence did not demonstrate that Google’s actions in this area stifled competition in violation of U.S. law.

Not everyone is happy with the FTC settlement as the Washington Post reported:

Consumer groups, Google’s rivals and some legal analysts say the company now will be emboldened to enhance the visibility of its own products for travel, shopping and other lucrative services in ways that will make it harder for people to find other offerings and will lead to higher prices.

After almost 2 years of investigation by the FTC surely Google is pleased. Comscore’s latest rankings indicate 67% of all US searches on conducted on Google, so this FTC resolution remains to be seen how this will impact the search engine market.
 

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Although in mid-December the Washington Post reported that there was an apparent antitrust settlement with Google and the FTC, Google reached out to me to let me know otherwise. Google sent me an email  with a link to former FTC Commissioner Orson Swindle's article and a Forbes article which I reference below.  Google wanted me to know among other things said:

The FTC, though it looked like it was very soon to announce resolution of its Google investigations, may be putting this off a little longer, at least, presumably due to competitor push back. But, from what has been reported in the media to date, it seems like a solution is very close which not only protects consumers but also protects innovation.

Commission Swindle wrote in the Washington Post regarding the FTC investigation:

Google’s competitors, led by Microsoft and the FairSearch coalition, have been clamoring for government action against the company for years. To the FTC’s credit, it appears this extraordinarily well-funded public relations and lobbying ploy will not bear fruit for FairSearch and its accusation of search bias by Google.

In a recent report Forbes including this summary regarding the FTC investigation:

The final chapter in this investigation clearly has yet to be written, and much may change over the coming weeks and months. If the rumors prove true, the FTC’s actions will send a signal to all tech companies that they must act responsibly, but also that they can continue innovating and growing without constant fear of a potentially damaging enforcement action.

So I guess we all need to stay tuned for the FTC’s action regarding Google’s search engine business.
 

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The Washington Post reported that the FTC and Google have reached a deal in the 2 year investigation about monopoly practices where Google “would agree to new limits on its ability to use snippets of content from other Web sites and would agree to make it easier for marketers to transfer their online ads to other services.” However the five FTC Commissioners still have to ratify this agreement.

Assuming the US resolves its antitrust claims against Google, don’t forget that the EU continues to press its antitrust claims against Google. In a report earlier this year the Washington Post indicated that the threat to Google was a:

…$4 billion fine and a formal ruling that it has abused its dominance in the search market to hurt rivals across a range of industries.

Since Google accounts for about 90% of the searches in the EU a negative antitrust ruling will surely impact Google’s business.
 

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Yahoo recently reported stated that French President Francois Hollande wants a tax on Google, and other search engines each time they use French media content. Google has threatened to exclude French media websites from search results to avoid paying this new tax. Apparently the goal of the new tax would be to “reward French media content.” Yahoo also noted that Germany is considering a similar tax. How taxing Google and others for showing French media in results helps French media, may be confusing. Perhaps over time we will learn more about that.

Legally any such tax plan, to the extent it taxes searches, is not so simple. Each user on Google agrees to the Terms of Service and Privacy Policy that controls the use of the information search and privacy. So the contract is entered between Google and the user, and the local governments are not a party to those contractual terms unless some valid local law so prescribes. 

What legal right does a government have to require any search engine to report search results where no money changes hands between Google and the user? In plain English, there does not appear to be a taxable event. So what tax law could apply to obligate Google to pay a search tax?
 

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Recent reports indicate that the US and EU antitrust regulators are considering filing suits against Google, but not for control over the search engine market, which clearly Google controls. Rather the antitrust claims will be directed at Google's unfair competition by unfairly manipulating search results. Computerworld recently reported:

…the suit might charge that Google manipulates search results to direct consumers to Google Places rather than Yelp or to Google Shopping rather than Pricegrabber or Shopzilla. Another potential issue is whether Google's AdWords marketplace discriminates against ads from services that compete with Google's services.

Given all the antitrust problems Microsoft has had with Internet Explorer in the US and EU, one would think that Google would understand that they had antitrust risk by their business practices.
 

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The New York Times reported that “Google reported sales of more than $4 billion in Britain last year…” but “paid less than $10 million in taxes.” Google VP for North and Central Europe Matt Brittin told a UK parliamentary panel that “We pay the tax we are required to pay in every country in which we operate.”

Where taxable transaction occur on the Internet is always a challenge since the Internet business may be in California, the server in another state or country, and the purchaser an a different location. The New York Times added this complexity:

Google says that most of the economic value it creates is generated in Silicon Valley, where its engineers toil away at the computer algorithms behind its search engine and other services. So the company says it is fair that most of what it pays in taxes goes to the United States Treasury, not its foreign counterparts.

In the past eBay, Amazon, and many other Internet business have been fighting Internet taxes, so surely we will continue to see more headlines about taxes
 

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The 27 heads of European data agencies complained that Google’s failed to respond adequately to charges that Google’s new Privacy Policy effective on March 1, 2012 violated the EU privacy laws which are referred to as the 1995 Data Directive  –“Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.“

The October 16, 2012 letter from the Article 29 Data Protection Working Party included this statement about the Google’s response to the EU’s inquiry:

Google’s answers have not demonstrated that your company endorses the key data protection principles of purpose limitation, data quality, data minimization, proportionality and right to object. Indeed, the Privacy policy suggests the absence of any limit concerning the scope of the collection and the potential uses of the personal data.

The letter included these three legal issues:

• Firstly, the investigation showed that Google provides insufficient information to its users (including passive users), especially on the purposes and the categories of data being processed.
• Secondly, the investigation confirmed our concerns about the combination of data across services.
• Finally, Google failed to provide retention periods for the personal data it processes.

In September 2012 Netmarketshare reported that Google accounts for about 85% of all searches world wide the impact of potential fines for privacy violations by the EU based on its revenue may be significant. In addition to possible fines Google may be subject to criminal charges for violating EU privacy laws.

What do you think about Google’s position regarding its new privacy policies?
 

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Google announced a pilot test which allows Google to provide Gmail results in normal search queries, including this example: "So if you’re planning a biking trip to Tahoe, you might see relevant emails from friends about the best bike trails, or great places to eat on the right hand side of the results page."

The Washington Post reported:

…the feature would cull information from users’ inboxes for relevant queries. A search for “my flights,” for example, would pull flight confirmation e-mails and match that information against Google’s existing flight tracking search feature. Searches related to other things, such as plans for the weekend, would also showcase e-mails related to that subject on the right-hand column of Google’s search results.

One only need review Google’s Privacy Policy to see that Gmail users have little privacy, however few users ever bother. This integration of Gmail and Google Search may force users to rethink what level of privacy they really have.
 

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Google confessed to U.K. officials that Google still has Street View unprotected wifi data collected before 2010 in spite claims that such data had been destroyed. On July 27, 2012 Peter Fleischer (Google's global privacy counsel) sent a letter to Steve Eckersley (head of enforcement) at the Information Commissioner's Office (ICO) and admitted the following:

Google has recently confirmed that it still has in its possession a small portion of payload data collected by our Street View vehicles in the U.K. Google apologizes for the error.

In conducting that review, we have determined that we continue to have payload data from the U.K. and other countries. We are in the process of notifying the relevant authorities in those countries.

In response Mr. Eckersley wrote back that Google should never have collected the unprotected wifi data to begin with.

PC Magazine reported that those other countries are U.K., Ireland, France, Belgium, the Netherlands, Norway, Sweden, Finland, Switzerland, Austria, and Australia.

As a result of Google's admission to the ICO, the French counterpart to ICO, C.N.I.L. has now demanded Google report about the Street View wifi data. The New York Times reported that:

The C.N.I.L. fined the company €100,000, or $120,000, in March 2011 for collecting private e-mail messages, computer passwords and other personal data as its cars took pictures for Google’s Street View feature, a case that prompted privacy investigations around the world.

Clearly collection of unprotected wifi data has become a serious mess for Google, and it appears that this episode is far from over.

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A law professor concluded that Justices on the Supreme Court regularly use Google since apparently Opinions issued by the Supreme Court cite facts never offered by the lawyers’ briefs. Professor Allison Orr Larsen (William & Mary Law School) studied 15 years of Supreme Court decisions and concluded that the Justices simply rely on Google.

Professor’s Larson’s conclusions are hardly a surprise given two Pew Research reports with these statistics:

92% of adults use search engines every day
86% of search engine users lean something new and important

What makes the Supreme Court Justices' reliance on Google more interesting is the prospect that search results are manipulated to generate more money for the search engines as alleged by the Texas Attorney General.
 

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Google is getting high marks for its May 2012 Transparency Report that when copyright owners complain about website infringement, that Google takes down those website urls (universal resource locators) 97% of the time. Google claims the other 3% are not taken down because of inaccurate or incomplete information.

In April 2012 1,255,402 url removal requests were made to Google search alone, not YouTube or Blogger. Top request for April 2012 were: Microsoft made 466,732 requests, NBCUniversal made 180,564 requests, BPI (British Recorded Music Industry) Ltd made 147,977 requests, Elegant Angel made 43,828, and RIAA members made 25,540 requests. Computerworld added the following observation:

…the organization associated with the most copyright removal requests was not a music label but Microsoft Corp. More than 530,000 of the URLs that were the subject of removal requests linked to Microsoft content. Between July 2011 and now, Microsoft or its representatives have asked Google to remove over 2.5 million URLs from its search engine results at a median of 48,700 URLs per week.

The Electronic Frontier Foundation (EFF) has praised Google for the Transparency Report that 97% of url takedowns were complied with however the EFF went on to say:

This transparency report gives Google a chance to highlight some of its good citizenship as an online service provider. Although the burden of liability is supposed to be on the organization that sends the takedown notice — it is required to claim under penalty of perjury to have a good-faith belief of copyright infringement — in practice many groups are willing to skirt those rules, sending takedown notices to silence unfavorable speech or even without human review.

Google’s Transparency Report provides interesting insight about who makes url takedown requests, and given Microsoft competitive search engine Bing it would be interesting to see what transparency reports Microsoft issues.
 

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Law professor Eugene Volokh wrote a paper describing why he believes that search engines have a constitutional right to speak to their users without government intervention. Although the 27 page paper was commissioned by Google, Professor Volokh (UCLA Law School) made the following conclusions about the leading search engines:

Google, Microsoft’s Bing, and Yahoo! Search exercise editorial judgment about what constitutes useful information and convey that information—which is to say, they speak—to their users. In this respect, they are analogous to newspapers and book publishers that convey a wide range of information from news stories and selected columns by outside contributors to stock listings, movie listings, bestseller lists, and restaurant guides. And all of these speakers are shielded by the First Amendment, which blocks the government from dictating what is presented by the speakers or the manner in which it is presented.

The New York Times reported that Google hired Professor Volokh to help validate Google’s immunity from antitrust claims which are front page news in the US and EU. As a matter of fact, the EU recently demanded that Google change its search engine practices or suffer antitrust fines.  My good friend Erika Morphy wrote an interesting article for eCommerce Times on the EU claims entitled "Is Google Stuck in EU Antitrust Locomotive's Headlight? "

If the Google can sustain its claim that as a publisher relying on free speech and that Google has the right to produce whatever search results it chooses, then perhaps Google can avoid antitrust charges.
 

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Myspace agreed to 20 years of US government oversight of privacy, just like Facebook did in 2011 and Google did in 2010. On May 8, 2012 the Federal Trade Commission (FTC) released a statement about its settlement with Myspace dislosing the following mispresentations which were violations of federal privacy laws :

• Myspace provided advertisers with the Friend ID of users who were viewing particular pages on the site.
• Advertisers could use the Friend ID to locate a user's Myspace profile to obtain personal information publicly available on the profile and, in most instances, the user's full name.
• Advertisers also could combine the user's real name and other personal information with additional information to link broader web-browsing activity to a specific individual.
• Myspace certified that it complied with the U.S.-EU Safe Harbor Framework…, including the requirements that consumers be given notice of how their information will be used and the choice to opt out.

As part of the settlement agreed “… to implement a comprehensive privacy program, and …regular, independent privacy assessments for the next 20 years.” TheFTC solicits public comments:

The agreement will be subject to public comment for 30 days, … through June 8, after which the Commission will decide whether to make the proposed consent order final. Interested parties can submit written comments electronically or in paper form by following the instructions in the "Invitation To Comment" part of the "Supplementary Information" section. Comments can be filed electronically at this link. Comments in paper form should be mailed or delivered to: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue, N.W., Washington, DC 20580.

Myspace’s confession is not a big surprise given that Facebook and Google entered into similar agreements in the past 2 years.

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Google was fined $25,000 for not cooperating with an investigation regarding Google’s collection of unencrypted wifi data when taking Street View pictures from 2006-10, but the Federal Communications Commission (FCC) reported that Google did not violate any US laws. The FCC’s Report included this conclusion regarding alleged violations of Section 705(a) of the federal Wiretrap Act:

…the Bureau has found no evidence that Google accessed or did anything with such encrypted communications….we do not find sufficient evidence that Google has violated Section 705(a).

When Google’s wifi data collection became news in 2010 Google confessed that the wifi information collected was: 

WiFi networks broadcast information that identifies the network and how that network operates. That includes SSID data (i.e. the network name) and MAC address (a unique number given to a device like a WiFi router). Networks also send information to other computers that are using the network, called payload data, but Google does not collect or store payload data.

Since 2010 there has been much controversy about Google’s wifi collection, but the FCC’s vindication does not overcome Google’s alleged violation of EU laws.

I find Street View feature of Google Maps one of the greatest Interest services available since it allows anyone to see the world up close and personal. This is how Google describes Street View:

Google Maps with Street View lets you explore places around the world through 360-degree street-level imagery. You can explore world landmarks, view natural wonders, navigate a trip, go inside restaurants and small businesses.

It is interesting that Google created such a firestorm about collecting unencrypted wifi data while taking pictures which helped transform information on the Internet.

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Google finally won a cloud war against Microsoft after years of battle and the US Department of Interior (DOI) will now deploy Google Apps for 90,000 employees instead of Microsoft Office 365. On January 3, 2011 US District Judge Susan Braden issued a temporary injunction enjoining the DOI from awarding a contract to Microsoft because apparently the DOI did not comply with federal procurement laws. Computerworld reported that Google was the successful vendor:

The contract is worth about US$35 million over seven years, the Interior Department said. It estimated that by replacing its current systems with Google Apps for Government, it will save up to $500 million by 2020.

Google’s success is a major victory for Google Apps in the highly competitive cloud wars.
 

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Greenpeace reported that cloud computing may be popular, but generally it’s not very clean and gave Apple Ds and Amazon Fs, while Google got the best grades. The Greenpeace report entitled “How Clean is Your Cloud?” made these observations about electrical consumption:

• The electricity consumption of data centers may be as much as 70% higher than previously predicted.
• If the cloud were a country, it would have the fifth largest electricity demand in the world.

The Report had these findings regarding some of the largest IT/Internet businesses:

1. Three of the largest IT companies building their business around the cloud – Amazon, Apple and Microsoft – are all rapidly expanding without adequate regard to source of electricity, and rely heavily on dirty energy to power their clouds.

2. Yahoo and Google both continue to lead the sector in prioritizing access to renewable energy in their cloud expansion, and both have become more active in supporting policies to drive greater renewable energy investment.

3. Facebook, one of the largest online destinations with over 800 million users around the world, has now committed to power its platform with renewable energy. Facebook took the first major step in that direction with the construction of its latest data center in Sweden, which can be fully powered by renewable energy.

The Greenpeace Report is not surprising, but most cloud computing consumers do not take environmental concerns into consideration. Is this important to you and your business?

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Since 92% of adults use search engines every day means that they share volumes of information with Google, who dominates searching, 66.4% in the US and 80% in the EU. No one was surprised when Pew Research reported that 92% of adults search daily, but what Google does with our personal information changed on March 1, 2012 when Google simplified its Privacy Policy.

To learn more about challenges to Google’s new Privacy Policies, I encourage you to read my column in eCommerce Times entitled “Google's New Privacy Policy vs. the World.” 

Let me know what you think about your privacy when you use Google!
 

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 Although Google claims its new Privacy Policy helps simplify privacy, the EU claims otherwise and specifically that the new Privacy Policy “makes it impossible to understand which purposes, personal data, recipients or access rights are relevant to the use of a specific service.”  

The EU gave the lead to investigate Google’s new Privacy Policy to the French Commission nationale de l’informatique et des libertés (CNIL). CNIL states that it “is responsible for ensuring that information technology remains at the service of citizens, and does not jeopardize human identity or breach human rights, privacy or individual or public liberties.”  

On February 27, 2012 CNIL sent a letter to Google CEO Larry Page (which was follow-up to a February 3rd letter) complaining that Google failed to properly consult EU authorities about the new Google Privacy Policies and that the:

…preliminary analysis shows that Google’s new policy does not meet the requirements of the European Directive of Data Protection (95/46/CE), especially regarding information provided to data subject.  

The CNIL highlighted the significance of Google’s penetration in the EU with the following statistics about Google’s usage: 

-more than 80% of the European search engine market,
-around 30% of the European smartphones market,
-40% of the global online video market and
-more than 40% of the global online advertisement market

Apparently Google has chosen to ignore the EU’s warnings and surely we will see more headlines soon.

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The Electronic Privacy Information Center (EPIC) filed a Motion to enjoin Google from implementing new ToS and Privacy Policies on March 1, 2012. On February 8, 2012 EPIC filed a Motion for Temporary relief against the Federal Trade Commission (FTC) to enforce Google’s March 2011 Agreement Containing Consent Order which included the FTC's oversight on Google’s Privacy Policies for 20 years. EPIC’s Motion comes on the heels of the EU’s request that Google slow down the implementation of the new ToS and Privacy Policies.

EPIC Motion claims that Google's new ToS and Privacy Policies violate the FTC Consent Order and includes the following claims:

Users will no longer be able to keep personal information they provide to use the Google email service for simply that service; Google will be able to combine the user information provided for email with other Google services, including the Google social network service.

Based on the March 1, 2012 date for the new Google ToS and Privacy Policies, EPIC reported that the court accelerated the briefing schedule so that the FTC must respond on February 17, 2012 and the EPIC file its reply by February 21, 2012. 

As a result of this fast track for EPIC’s Motion it is likely we will have a ruling by the court before March 1, 2012.
 

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EU officials announced that the new Google Privacy Policies may not insure compliance with EU laws and asked Google to halt these changes pending an investigation of the implications of personal data protection. Google’s new Privacy Policies are scheduled to go into effect on March 1, 2012 and the New York Times reported that EU authorities wrote to Larry Page (Google CEO): “call for a pause in the interests of ensuring that there can be no misunderstanding about Google’s commitments to information rights of their users and E.U. citizens.”

In the Meantime – EU Proposes Changes to its 1995 Privacy Law

The current Privacy law went into effect in 1995 and the origins of the law began in 1989 because of social concerns about privacy on mainframes, long before Social Media took off with Facebook, Google, Wikipedia, and the rest. So as you may image in 1989 let along 1995 there was no way the EU could have foreseen the evolution of the Internet and Social Media.

As my good friend Erika Morphy recently reported for eCommerce Times that “Europe appears poised to enact strict new privacy regulations geared to protect consumer data, but the debate is far from over. Representatives of businesses, particularly e-commerce companies, are descending on Brussels to plead their case.” 

In particular Facebook and other Social Media sites are concerned about the EU’s new plans for privacy that restrict Internet sites more strictly than ever before and require the Internet business to assume more responsibilities for protecting individuals. The new EU law includes a new concept referred to as “right to be forgotten” which would surely impact the large Social Media sites.

So was Google trying to change its Privacy Policies before the EU modified its 1995 Privacy laws? What do you think?
 

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Google recently announced revised Terms of Service (ToS) and Privacy Policy which go into effect on March 1, 2012. Google claims that the ToS were rewritten “to make them more readable and to reduce the repetition and legalese.” And with regards to the Privacy Policy Google stated:

We’re getting rid of over 60 different privacy policies across Google and replacing them with one that’s a lot shorter and easier to read. Our new policy covers multiple products and features, reflecting our desire to create one beautifully simple and intuitive experience across Google. 

I encourage you to read Google’s new ToS and Privacy Policies, but my personal experience is that about 1% of users actually ever bother. Please read my eCommerce Times legal columns about ToS and Privacy Policies to get a better idea how important the legal terms are.
 

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Although Google's Android smartphone operating system has been associated with Carrier IQ, Eric Schmidt (Google's Executive Chairman) told an Internet freedom conference in the Dutch city of The Hague about Carrier IQ that "It's a key-logger, and it actually does keep your keystrokes, and we certainly don't work with them and we certainly don't support it." Reuters reported that Schmidt also said "Android is an open platform, so it's possible for people to build software that's actually not very good for you, and this appears to be one."

You might want to look at Carrier IQ’s website since it has a running log of the number of handsets currently deployed at the moment this blog is written was “141,422,528” and increasing at a rate of 67 handsets per minute (based on my iPhone stop watch). That translates to an amazing increase of 96,480 handsets per day!  Can that really be true?

Carrier IQ’s front page still states that:

Carrier IQ is the leading provider of Mobile Service Intelligent Solution to the Wireless Industry. As the only embedded analytics company to support millions of devices simultaneously, we give Wireless Carriers and Handset Manufacturers unprecedented insight into their customers’ mobile experience.

Seems like status quo for Carrier IQ, but the number of handset appears to be growing very quickly, and Carrier IQ’s response to Senator Franken will be interesting.

What do you think about Carrier IQ?
 

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After the US government filed charges that Facebook violated US privacy law, Facebook finally confessed that it failed to protect the privacy of its 800 million active users. The Federal Trade Commission (FTC) welcomes the public to submit comments on the settlement through December 30, 2011.

Under the proposed consent order, which does not include any fines, Facebook is:

barred from making misrepresentations about the privacy or security of consumers' personal information;

required to obtain consumers' affirmative express consent before enacting changes that override their privacy preferences;

required to prevent anyone from accessing a user's material more than 30 days after the user has deleted his or her account;

required to establish and maintain a comprehensive privacy program designed to address privacy risks associated with the development and management of new and existing products and services, and to protect the privacy and confidentiality of consumers' information; and

required, within 180 days, and every two years after that for the next 20 years, to obtain independent, third-party audits certifying that it has a privacy program in place that meets or exceeds the requirements of the FTC order, and to ensure that the privacy of consumers' information is protected.

The Facebook user community surely welcomes these commitments to comply with privacy laws, and it’s good to see that FTC will monitor Facebook’s privacy compliance for the next 20 years. The 20 year privacy monitoring is similar to the FTC’s agreement for Google to protect privacy after Google’s social media disaster with Buzz.

However, time will tell if the FTC can really police social media privacy, so it would be wise for social media users to protect their own privacy.
 

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Pew Research recently reported that 92% of adults use search engines daily and comScore recently reported that 65.6% of all US searches are conducted on Google. So I thought I would pass along Hack College’s recommendations about how to “Get More Out of Google.” Here are some search pointers that may improve your use of Google:

Try these searches on Bing and Yahoo!, but you’ll see that they don’t work the same.

Please let me know if pointers help your use of Google.

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Since the Wikimedia Foundation (home of Wikipedia) is a not-for-profit, it survives by annual fundraisers. Google co-founder Sergey Brin and his wife Anne Wojcicki (23andMe co-founder) used their Brin Wojcicki Foundation to grant $500,000 to the Wikimedia Foundation. The Wikimedia Foundation kicked off its 8th annual fundraiser on November 16, 2011 and raised $1.2 million the first day.

Most people don’t realize that unlike most other Social Media sites, the Wikimedia Foundation is not generating profits rather it relies on contributions.  The Wikimedia Foundation is a 501(c)(3) for tax purposes. That means the Wikimedia Foundation does not operate to make a profit and does not pay taxes, and contributions to the Wikimedia Foundation are tax deductible.

According to a Wikimedia Foundation press release from Sue Gardner (the Executive Director) announcing the Brin Wojcicki Foundation grant:

The Wikimedia projects currently reach more than 477 million unique visitors around the world every month (comScore, October 2011), making Wikipedia the fifth most-popular web site in the world.

This is how Wikipedia works: people use it, they like it, and so they help pay for it, to keep it freely available for themselves and for everyone around the world. I am very grateful to Sergey Brin and Anne Wojcicki for supporting what we do.

Interesting blog on the New York Times included this comment:

Google and Wikipedia haven’t always been friends. In 2007 Google introduced a service called Knol, which was seen by many as a Wikipedia competitor. There were concerns at the time that Google would highlight Knol rankings in its search results, pushing Wikipedia aside. But Knol didn’t fare well online and has grown slowly.

The Wikimedia Foundation and Wikipedia expanded credibility with by its alignment with the Smithsonian Institution, and other contributions from mainstream business.
 

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All Social Media and Internet businesses rely on TOS and Click Agreements to protect their legal rights, but few businesses take the time to make sure that the TOS and Click Agreements actually protect their business operations. I welcome you to read my eCommerce Times column entitled “Your Customers May Not Review Your ToS and Click Agreements, but You Should!”

Early this fall in my Law of eCommerce class at the SMU Dedman School of Law the class reviewed the TOS for the major search engines – Google, Bing, Yahoo!, and AOL. Even though these search engines compete head to head, no surprise the legal terms varied widely. But it was a surprise to my students, none of whom had had taken the time to review TOS before.

So take some time and review your TOS and Click Agreements to see if they actually protect your business.
 

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Google was the most valuable brand name in the world for 4 years, and now Apple has finally surpassed Google as the most valuable brand.  Rounding out the top 10 are very familar names:

1. Apple
2. Google
3. IBM
4. McDonald’s
5. Microsoft
6. Coca-Cola
7. AT&T
8. Marlboro
9. China Mobile
10. GE

Of course one reason for Apple’s value has been its great success in retail. No wonder J.C. Penny hired Ron Johnson to be their new CEO (Johnson was Apple’s senior vice president of retail).

Since so much of the world is dependent on eCommerce, including J.C. Penny, it will be interesting to see how Apple and J.C. Penny fare. I wonder what this portends for the future of eCommerce?

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VOIP is likely headed in a new direction now that Microsoft agreed to pay $8.5 billion for Skype. It was reported that Facebook and Google’s offers were in the $3 to 4 billion range, while at the same time Skype was still considering an IPO later this year. As a result of this purchase, Microsoft may end up the Internet leader of communications, information, and entertainment. Clearly Facebook’s play for Skype would have extended the reach of the 600+ million friends and Google’s plan would have enlarged the Google Talk and Voice offerings. 

Skype was founded in 2005 in Luxemburg, and purchased by eBay for $3.1 billion in 2005. But in 2009 eBay sold a majority to an investor group.

Without question VOIP is the future of communications and it will be interesting to follow Skype in the future. What do you think about Microsoft winning this competition over Facebook and Google?

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Q1 revenue increased $8.6 Billion which is 27% higher than a year earlier, however there are a number of critical legal issues facing Google which I included in my recent eCommerce Times column. Those legal challenges include the recent rejection of the long-running Google book settlement by US Circuit Judge Denny Chin regarding Google’s plan to digitize millions of books from libraries around the world. As a result of Google's unfavorable  launch of Buzz now the FTC will have oversight over Google’s privacy policy for the next 20 years. Also Google has antitrust issues in the EU and US. In spite of these challenges it appears that Google is economically success and doing well. However it’s difficult to predict how long Google can succeed with these complex legal issues to contend with.

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Not only was Google’s roll out of Buzz in 2010 badly received by the user community, the Federal Trade Commission (FTC) filed a Complaint for Google’s violation of its own Privacy Policies:

 ...Google launched its Buzz social network through its Gmail web-based email product. Although Google led Gmail users to believe that they could choose whether or not they wanted to join the network, the options for declining or leaving the social network were ineffective. For users who joined the Buzz network, the controls for limiting the sharing of their personal information were confusing and difficult to find, the agency alleged.

The FTC Complaint alleged that Buzz violate US privacy laws, and also violate the US – EU Safe Harbor Framework to allow personal data to be lawfully transferred from the EU to the US. Ultimately Google settled this dispute with the FTC and the FTC announced:

The proposed settlement bars the company from future privacy misrepresentations, requires it to implement a comprehensive privacy program, and calls for regular, independent privacy audits for the next 20 years.

Clearly the FTC settlement with Google sends a huge wake up message to everyone to review their Privacy Policies to avoid FTC actions!

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The Department of Interior (DOI) was enjoined from awarding Microsoft a contract to provide a Cloud email service following Google's bid protest. US Judge Susan Braden issued a temporary injunction because the DOI failed to comply with federal procurement laws. Google and Microsoft both offer Cloud email services, but apparently the DOI’s Request for Quotation (RFQ) described Microsoft federally based Cloud email system as the only qualified vendor. After Microsoft was awarded the Cloud email service contract with DOI, Google filed a protest and ask the US Court of Federal Claims to enjoin DOI. Without finding any bad faith by the DOI, on January 3, 2011 Judge Braden issued a preliminary injunction against the DOI going forward with the Microsoft Cloud email system. Competition in the Cloud continues to heat up and this battle between Google and Microsoft will the first of many headline stories, so stay tuned.

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All indicators were headed to this new headline that as 2010 ends Facebook overtook Google as the most popular Internet site. Experian Hitwise reported that “8.9 percent of unique online visits were to Facebook this year, compared with Google's 7.2 percent,” and ComScore estimates that Facebook would “surpass Google for the first time in number of pages viewed.” Of course these details are not much of surprise given that Facebook collected more than $200 billion in revenue in 2010 which was more than double its 2009 revenue. But other measures such as top Buzzed Sites lists YouTube as #1 and Facebook as #6…. So I guess this reinforces my father’s view of statistics…. Which is there are three types of liars – #1 Liars, #2 Damn Liars, and #3 Statisticians!

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After digitizing 5.2 million books Google now offers new tools that permit a fascinating view of language, culture, and evolution of thought unlike anything known before. Now anyone can analyze “500 billion words contained in books published between 1500 and 2008 in English, French, Spanish, German, Chinese and Russian.” Although the intended audience is for scholars, without question everyone can learn about more about our cultural evolution with Google’s new tools. One might wonder if these new Google tools could be applied to legal research to help the courts deal with social change. Without question Social Media is changing way people communicate and this new Google service will provide new insight about the future.

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Hitwise recently reported that 1 in every 4 pageviews in the US is on Facebook, and also incredible is Facebook’s claim that people spend over 700 billion minutes per month on Facebook. Astonishing growth made even more amazing by realizing that the second place, and far behind Facebook, is YouTube with 6.39% of US pageviews and third place Google at 5.32% of US pageviews! To make Facebook’s 25% of US pageviews even more significant is that comScore reported that Facebook’s growth in the past year was 55% over the preceeding year. Pretty heady stuff, but the biggest questiona of all are- where are we headed with Social Media and will the growth continue at this kind of pace?

Get Ready for Interesting Litigation

It’s not hard to conclude that the more Social Media activity, the more likely that communications between individuals will be evidence in lawsuits. Just one more reason that individuals who participate in Social Media should be thoughtful about what they post of Social Media sites, since items posted on the Internet have a way of surviving forever as Google CEO Eric Schmidt and some people may decide they need to change their identifies because of what they’ve said and on Social Media sites. Otherwise I recommend this advice – Don’t say anything on a Social Media site that you wouldn’t want a jury to see. If jury hears something once they may believe, if a jury hears something said twice they start believing it’s true, but if a jury sees a posting on a Facebook they will believe it’s true!

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The Electronic Privacy Information Center (EPIC) issued its second annual privacy report card with lower grades of “C for consumer data protection efforts and a D on civil liberties.” Mark Rotenberg, executive director of EPIC said "Our bottom-line assessment is that with respect to privacy, things are getting worse.” The EPIC is pleased that President Obama’s first Cyber Czar Howard Schmidt (who was appointed in December 2009) is working with privacy groups. EPIC’s report is critical of the Federal Trade Commission (FTC) which is now reevaluating US privacy laws in the wake of Google’s Buzz disaster and alleged privacy violations by Facebook. Clearly everyone needs to keep an eye on how the Obama administration manages privacy, and now that the Democrats do not control both houses of Congress it will be interesting to see how law makers deal with privacy.

New Congress and Privacy

As matter of fact after the November 2, 2010 election the Washington Post reported  that “Rep. Joe L. Barton (Tex.), ranking GOP member of the House Energy and Commerce Committee, signaled the legislative push in a statement about his correspondence with Facebook executives on privacy issues…I want the Internet economy to prosper, but it can't unless the people's right to privacy means more than a right to hear excuses after the damage is done.” Reports of data breaches continue and merely needs to check out the FBI’s websites of Cyber Crime Stories which clearly impact us all. 

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Google settled a dispute about rejecting ads with the French Competition Authority including a 3 month notification period for the future when rejecting ads. Navx bought ads from Google to help drivers avoid speeding tickets by providing “online maps pinpointing the location of radar and camera systems the authorities use to crack down on speeding on French roads.” Because radar detectors are illegal in France Google rejected Navx's ads, and Navx filed a lawsuit in court for 7 million euros ($9.7 million) alleging damages. As part of the settlement Google “pledged to overhaul its rules and procedures for blocking certain advertisers from buying “sponsored links.” This good news since Google is adopting these new ad policies worldwide.

Google Accounts for 90% French Searches

Even better news for Google was that even though Google accounts for 90% of all online searches in France the French Competition Authority made “no finding of dominance or monopoly abuse.” However this could change and Google should be mindful of abusing its success. If Google accounted for 90% of the searches in the US it’s doubtful that the US government (FTC or Justice Department) would find no dominance or monopoly abuse. After all, the Justice Department pursued antitrust claims against Microsoft in the 1990s because of Microsoft’s market power and tying Internet Explorer to the Windows operating system (my 4th Big Bang of the Internet). There have been rumblings about Google’s potential anti competitive behavior since President Obama took office.

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Google will not be accused of copyright infringement by posting the Dead Sea Scrolls unlike the current litigation about Google’s Books Library Project where Google is scanning millions of books to be freely available. Although the litigation continues, settlement looms on the horizon but the date for claims to be filed has been extended to March 31, 2011. The library partners include: Austrian National Library, Columbia University, Harvard University, New York Public Library, Oxford University, Princeton University, University Library of Lausanne, and many other famous institutions. Many notable scholars have weighed in that Google’s Library Project is great including Harvard Law Professor Lawrence Lessig "[Google Books] could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible." On the other hand many authors believe the value of their copyrights will be lost or diminished if Google makes their writings available for free.

Dead Sea Scrolls

Computerworld announcement about the Dead Sea Scrolls is a monumental event in history:
 

Google is working with the Israel Antiquities Authority (IAA) to digitize the Dead Sea Scrolls and make them available online. The collection of documents consists of about 30,000 fragments of the scrolls, which are approximately 2,000 years old…. This is the first time that the collection has been photographed in its entirety since the 1950's, according to the Israel Antiquities Authority, an Israeli governmental authority tasked with regulating excavation and promoting research.

The publication on Google of the Dead Sea Scrolls seems to fit into Wikipedia’s Vision Statement included in its Terms of Use: “Imagine a world in which every single human being can freely share in the sum of all knowledge. That's our commitment.” What an exciting time in the evolution of the Internet!
 

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Facebook now offers users the ability to download all of their content in a simple zip file format, but this doesn’t solve privacy concerns. Sure it’s nice to be able to download all the content, but in the meantime Facebook still stores lots of valuable information about users.

Let’s see a show of hands- how many of you have ever taken the time read Facebook’s Privacy Policy? … not many hands were raised which I find is the norm.

In the meantime here’s what Facebook says about site activity information:

We keep track of some of the actions you take on Facebook, such as adding connections (including joining a group or adding a friend), creating a photo album, sending a gift, poking another user, indicating you “like” a post, attending an event, or connecting with an application. In some cases you are also taking an action when you provide information or content to us. For example, if you share a video, in addition to storing the actual content you uploaded, we might log the fact that you shared it.

eMarketer.com July 2010 estimates are that the advertising revenue for Facebook in 2010 is $1.28 billion which is about a 50% increase from the 2009 revenue of $665 million. It doesn’t take rocket science to see that Facebook monetizes users’ data and so it’s hard to image that there is any real privacy on Facebook at all since Facebook sells information about everyone and what they do on Facebook.

What about Terms of Service and Privacy Policies?

Generally courts around the world enforce Terms of Service and Privacy Policies, but I continue to be amazed that so few people ever read these contracts that legally bind them to websites, and particularly Social Media sites. As part of my Law of eCommerce class I regularly review Terms of Service and Privacy Policies during each semester, and I find it fascinating that like businesses have such different business views….take a look at Google and Bing’s Terms of Service and see how differently they bind their users even though they are in the same search engine business. For instance, Google does not require users to indemnify Google for claims brought against Google, but Bing does require users to indemnify Bing (Microsoft) if a claim is made against Bing based on the user’s actions.

Think about Terms of Service and Privacy Policies

Often I find that my clients merely copy Terms of Service and Privacy Policies for their websites without taking into account that they may be in the software development and licensing business, but since they are not IBM, it’s not a good idea to just copy IBM’s Terms of Service and Privacy Policy as if they will properly protect themselves. One should use good judgment about how to bind users contractually to websites, and make sure the Terms of Service and Privacy Policies are consistent with the way their conduct their businesses.

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Allowing Google to access your cell GPS will permit Google to make suggestions about things to do or restaurants to try wherever you happen to be. Although Google’s CEO Eric Schmidt recently said these autonomous search features were on the horizon, we’re pretty close to that point already with the location based apps like Facebook’s Places, Foursquare, and Shopkick. However Schmidt’s comments about the autonomous search does raise new privacy issues that everyone should be concerned about. Do people really want Google be know so much about us that Google tells us what to do, where to go, and what to eat?

What about Google’s Instant Search?

Google’s promoting of its new Instant Search includes a video of an old Bob Dylan song which may be cute, but the new search raises other new concerns about privacy and data that Google has about us. Now when we type in a letter in a Google search Instant Search immediately starts offering search results which in a way allows Google to complete our thoughts for us. But also Google can direct search results for paid advertisers if they have reason to want higher search rankings. In the meantime the Texas Attorney General recently announced that it was investigating Google’s search engine, and we may all learn whether Instant Search is driven by advertising or algorithms for the optimum results. However, most people are surprised to learn that Google saves all of our searches for 18 months (at in the US). What do you think about Google?
 

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A number of allegations that Google manipulates search engine results has led to an investigation of possible antitrust violations. Google has now responded about its search engine fairness about why some websites get higher rankings than others: “The important thing to remember is that we built Google to provide the most useful, relevant search results and ads for users. In other words, our focus is on users, not websites. Given that not every website can be at the top of the results, or even appear on the first page of our results, it’s unsurprising that some less relevant, lower quality websites will be unhappy with their ranking.” Since search engines do not disclose how they operate, this investigation by the Texas AG may result in making public, for the first time, how Google’s search engine actually operates.

Craigslist Blocks Access to ‘Adult Services’ Pages

Although the courts have endorsed Craigslist’s right to run ‘Adult Services’ under the Communications Decency Act of 1996, public pressure by states’ attorneys general finally forced Craigslist to drop ‘Adult Services.’ Even though Craigslist is privately held, the Advanced Media Group estimates that Craigslist will generate about $45 million in revenue this year. Probably Craigslist finally got the message that public opinion of facilitating prostitution and selling women against their will was unacceptable, and ultimately would damage the rest of its business.

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A proposed law in Germany will restrict employers from using Facebook, and other truly social Social Media sites, when recruiting. However the law would allow employers to search business Social Media sites such as LinkedIn. Since there are no current guidelines in Germany about employer’s use of Social Media content these new laws will help establish guidelines. Of course there are no specific guidelines in the US where about 30% of the estimated 500 million Facebook users reside. Currently most employers review Social Media postings to make hiring decisions and until judicial reviews and statutes are enacted this will continue. However what people post of Facebook, and other Social Media sites, is often quite amazing which is why Eric Schmidt (Google CEO) recently opined that “people will one day change their name and reinvent themselves in order to escape their digital past.”

Most People Don’t Want to be Located

Facebook’s new location based Places has sparked new privacy issues about disclosing one’s whereabouts from the GPS cell devices that we carry. However according to Forrester Research only about 4% of Americans have adopted these location based services notwithstanding a recent report indicated that venture “capitalists have poured $115 million into location start-ups since last year, … and companies like Starbucks and Gap have offered special deals to users of such services who visited their stores… Shopkick, which became available this month, offers coupons to people when they walk into stores like Best Buy and Macy’s.” Nonetheless many people feel that their privacy is compromised by disclosing their location, so location based Social Media will be an interesting social evolution to watch.

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Google CEO Eric Schmidt “fears that too much information is shared online, and predicts that people will one day change their name and reinvent themselves in order to escape their digital past.” Not a very surprising observation given the explosive growth of Social Media, and proliferation of information helps and hurts trial lawyers. There were an estimated 1.5 trillion text messages in 2009 and estimated 210 billion emails each day… but how many in 2010 and thereafter? If people change their identities our ability to find evidence and witnesses will change, but finding meaningful evidence may be the greater challenge given the volume of electronic information which continues to grow a phenomenal pace.

Google Expands its Retail Presence

Google recently acquired like.com which increases its Products engine to sell retail products whether its clothing, computers, or snacks. Like.com founded in 2004 provides a “visual search engine focused on shoes, clothes, jewelry and décor,” and also owns covet.com which is a personal shopper from hundreds of online stores. Covet.com offers Stylyzer to learn about the shopper’s preferences. Since Google retains all search engine queries for 18 months one might wonder how Google will marry retail shopping preferences into search engine results.
 

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A recent report that the White House wants the FBI to have access to an individual’s Internet activity may help with investigation of terrorism or intelligence, but what about our expectation of privacy? Notwithstanding all of Mark Zuckerberg’s recent comments about privacy, last winter Zuckerberg he told a live audience that if he were to ‘create Facebook again today, user information would by default be public.’ Also Google CEO Eric Schmidt admitted in a CNBC interview that under the US Patriot Act that Google would turn over user information (which Google maintains for 18 months) without question. So maybe we have less privacy than we may think, but in the name of national security alone does it make sense for the White House/FBI to not even both getting a federal judge to issue a subpoena?

COMPANY PRIVACY: Social Engineer Defcon Contest

At the annual Defcon meetings (July 30-August 1) in Las Vegas there was a 3 day contest to see which Social Engineer could get the most company data from 30 companies. The FBI is not too happy, but after consulting lawyers from the Electronic Frontier Foundation the following contest rules were created:

Each Social Engineer is sent via email a dossier with the name and URL of their target company chosen from the pool of submitted names.

Pre-Defcon you are allowed to gather any type of information you can glean from the WWW, their websites, Google searches and by using other passive information gathering techniques. You are prohibited from calling, emailing or contacting the company in any way before the Defcon event. We will be monitoring this and points will be deducted for “cheating”.

The goal is to gather points for the information obtained and plan a realistic and appropriate attack vector. The point system will be revealed during the Defcon event. All information should be stored in a professional looking report. 1 week prior to Defcon you will submit your dossiers for review to the judging panel.

Stay tuned to see how successful the Social Engineers were in getting information from these 30 companies. How easy will it be to get information? We all know the answer, pretty easy!
 

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A new report shows that customers are not that happy with Facebook and MySpace also showed that social media was ranked lower than property & casualty insurance. Also not a surprise that airlines were lower in customer satisfaction than social media. The 2010 American Customer Satisfaction Index (ACSI) was produced in partnership with ForeSee Results is described in the Annual E-Business Report. ACSI scores for Wikipedia topped the Social Media score with a 77, followed by YouTube (Google) 73, Facebook 64, and MySpace 63. IRS scored a 65. Not a surprise that the primary reasons for low rankings for Facebook were: “privacy and security concerns, the technology that controls the news feeds, advertising, the constant and unpredictable interface changes, spam, navigation troubles, annoying applications with constant notifications, and functionality, to name a few.” Interesting customer results at a time with Facebook announced that it had 500 million users and Mark Zuckerberg is sued over an ownership claim!

Facebook a Utility?

In a recent interview on National Public Radio (NPR) Facebook CEO and founder Mark Zuckerberg described his company as a utility for its subscribers “….When I say utility, I mean we are trying to provide people with utility,...Our goal was never to build something cool. It was to build something useful." As part of this interview it was pointed out that Facebook has the largest private database of personal information in the world. When pressed about why Facebook wouldn’t disclose the contents of the database, Zuckberg responded that people would no longer trust Facebook if the database was disclosed. So if Facebook is a utility used by 500 million people, why is it not regulated?
 

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Google plans to buy ITA Software who provides airline travel utilities to American, Continental, Hotwire, Kayak, Orbitz, Microsoft's Bing, among other companies. Of course this purchase for $700 million will require federal scrutiny given the antitrust implications, but as my friend Erika Morphy reports “Google says it plans to honor all the agreements the firm has with its customers and does not intend to sell airline tickets. Instead, CEO Eric Schmidt said, the company plans to build new flight and fare search tools for travelers.” Google’s attempt to take control over the travel industry is an interesting evolution, but one must wonder if the acquisition of ITA Software will give monopoly power in the travel space to Google.

Google Reviewing My Final Exam Questions?

Since 2000 I have taught courses on the Law of eCommerce at the SMU Dedman School of Law and Google must have gotten the idea about taking over the travel industry from my 2008 Final Exam:

Google hired you to give e-Commerce business advice immediately after announcing that Google bought Microsoft, Oracle, SAP, IBM, Symantec, Adobe, AOL, Amazon, Yahoo!, American Airlines, Delta Airlines, United Airlines, US Air, Southwest Airlines, British Air, Cathay Pacific Air, China Air, Korean Air, Japan Airlines, Airbus, Boeing, Hilton Hotels, Marriott, Starwood, Hyatt Hotels, Hotels.com, Orbitz, and Travelocity. The combined company plans to operate from one main website located at www.google.com.

The government agencies that regulate each of these companies have not approved these mergers, regardless Google intends to begin the new website located at www.google.com  on January 1, 2009.

Assume that each of the acquired entities will continue conducting business in their current field of business.

(1) TERMS OF SERVICE. Write one set of terms of service that will apply to www.google.com.
(2) PRIVACY POLICY. Write one privacy policy that will apply to www.google.com.
(3) ASSUMPTIONS: State all assumptions.

Google got the idea from me. Right? What do you think?
 

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Viacom lost its $1 billion lawsuit against Google and YouTube for alleged copyright infringement when a judge granted summary judgment. YouTube’s defense was that it used the “safe harbor” protection of the Digital Millennium Copyright Act (DMCA) where YouTube would remove allegedly infringing videos after being notified, and after three offenses a poster would be banned from YouTube. On June 23, 2010 US District Judge Louis Stanton granted YouTube and Google’s motions in defense of claims brought by Via and other plaintiffs. In the 30 page Opinion Judge Stanton pointed out that “over 24 hours of new video-viewing time is uploaded to the YouTube website every minute.”  I know that YouTube is responsive to the DCMA takedown requests because YouTube has removed videos which have infringed copyrights of my clients.  The DCMA takedown procedures rules are part of YouTube's Terms of Service.

Viacom to Appeal

Viacom plans an appeal, but at this moment this appears to be a monumental ruling for Google and YouTube which helps define Copyright law on the Internet. As a trial lawyer my experience is that Judges rarely grant summary judgment (there are no facts in dispute, and the moving party wins on the law without a trial).  It is more likely than not that Google and YouTube will prevail on the appeal since the trial Judge granted summary judgment.  This case is important given size of YouTube and its role in changing Social Media.

YouTube Turns 5

When YouTube celebrated its fifth birthday in May, 2010 it announced that it passed “two billion video views a day.” YouTube has perennially lost money so there were many analysts who criticized Google’s $1.65 billion purchase of YouTube in 2006, which was made worse when Viacom brought its Copyright infringement lawsuit in 2007. YouTube has been developing partnerships with music labels to compete with "Hulu.com, the joint venture of Fox, NBC and ABC." So Judge Stanton’s Order should help clear Google and YouTube’s path for success and bring clarify about the DMCA.

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On June 8th I attended Mashable and CNN’s conference about the intersection of digital media, news, and entertainment. Among other notable presentations was CNN’s medical correspondent Dr. Sanjay Guptap’s (renowned neurosurgeon) interview of Mashable’s founder Pete Cashmore and CNN.com’s general manager KC Estenson. You can watch the video of the interview about the how CNN collects citizen journalist news from Social Media in addition to its world-wide news professionals, and the merger of Social Media with 24/7 TV. Another fascinating presentation about the “Science of Social Media” was given by Duncan Watts (Yahoo!’s Principal Research Scientist). Clearly the merger of Social Media, TV, and news has happened, but predicting the future is the next challenge.

NEAT BADGE FROM THE EVENT!

Former eBay and HP’s CEOs Win Primaries

Also on June 8th Meg Whitman (former eBay CEO) and Carly Fiorina (former HP CEO) won primary elections for the fall’s election for California governor and US Senator. Of course having high-tech leaders in the US Congress is not entirely new since New Jersey Senator Frank Lautenberg founded ADP (the payroll processing giant) and was first elected in 1982. But with the advent and growth to Social Media these primary wins are not a surprise.

High-Tech Politics

OpenSecrets.org reported that individuals and political action committees in high-tech businesses increased their donations “43% between election cycles in the last decade” to $41.4 million in 2008. Last year Google increased its lobby expenditures to $4 million. One can only expect more Social Media leaders to pursue elected offices since clearly President Obama proved that Social Media is the most powerful communications tool available today. Be assured that Google, Yahoo!, Microsoft, and other major Internet and IT companies are involved in future of politics!

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A Judge ruled that Facebook wall postings and MySpace comments may not be subpoenaed based on the 1986 Stored Communications Act which is the same statute before the US Supreme Court in Quon v. Arch Wireless. US District Judge Margaret Morrow’s May 26, 2010 37 page Order in Buckley H. Crispin v. Christian Audigier, Inc. et al reversed a ruling from an US Magistrate Judge that defendants in a copyright infringement case could not subpoena private message on Facebook MySpace. This ruling is particularly interesting since the April 7, 2010 White House Order that all postings on blogs and social media sites are public meetings under federal law. Clearly courts will be vexed by these complex issues as social media continues to grow and change communications. It is any wonder that the 1986 Stored Communications Act may need to be updated or totally replaced since clearly the courts and the White are not in synch?

Yahoo! Plans its Social Media

With 280 million email users it’s no wonder that Yahoo! will launch its social media services to allow exchange of comments, pictures, and the like. Given all the current issues with Facebook privacy and Google’s Buzz it’s no wonder that Yahoo! head of privacy claimed that “ We’ve been watching and trying to be thoughtful about our approach.” Clearly we will all be watching to see the impact of Yahoo! entry into social media, particularly as Yahoo! search engine decline in popularity in the US. Will email traffic overcome the lack of search engine traffic?

More Google Wi-Fi Woes – Now Canada

Recent reports now indicate that the Privacy Commissioner of Canada started an investigation about Google collection of Wi-Fi network data. Since Germany, France, Italy, and the Czech Republic are investigating Canada’s entry into the fray is no surprise. Google’s defense that other companies including Skyhook and organizations like the German Fraunhofer Institute does not seem to be much help at this juncture. The outcome of the Wi-Fi privacy issues may also impact Google maps which are tied together.

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Please join me for a Social Media webcast which will be an update about Facebook, LinkedIn, YouTube, Twitter, Yelp, Google, and much more on Wednesday, May 26, 2010 from 12:30-1:30pm CDT. You can sign up for the webcast at TexasBarCLE.

Google Update: Wi-Fi snooping earns it a class-action lawsuit

As a follow-up to my recent blog about Google's Street View Cars captured WiFi network information it is no surprise that many people are mad, but for folks who do not have secure WiFi networks….what should they expect? Stay tuned to see how this develops.
 

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To the surprise of many Google confirmed that since 2006 its Street View Cars captured WiFi network information in addition to Street View Photos. Google uses this WiFi network information to improve location-based services like search and maps. Specifically Google confessed that the WiFi information collected was:

WiFi networks broadcast information that identifies the network and how that network operates. That includes SSID data (i.e. the network name) and MAC address (a unique number given to a device like a WiFi router). Networks also send information to other computers that are using the network, called payload data, but Google does not collect or store payload data.

Not surprising that Google claims that its collection and use of the WiFi data was legal, done by other companies including Skyhook and organizations like the German Fraunhofer Institute. Around the world a number of privacy groups have been unhappy about Google Street View Photos and now new privacy concerns issues abound regarding Google’s collection of WiFi network data.

Destruction of Google’s Irish WiFi Data

Even though Google claim it is completely legal on May 14, 2010 the Irish Data Protection Authority asked Google to delete its WiFi network data collected in Ireland. So on May 16th the destruction of this WiFi network data was confirmed by a third party consultant. However one might wonder how the consultant could confirm that all the data was actually destroyed without reviewing Google computer networks, which is probably impossible to do.

Germany and Australia Want Answers

German prosecutors are investigating whether Google violated privacy laws and Google posted a blog that the Data Protection Authority in Hamburg, German requested an audit of Google’s WiFi data.  Also privacy groups in Australia want Google to know more. Clearly Google’s collection and use of private WiFi network information helps us better understand how little privacy we all have.

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No surprise that Google’s search engine continues to grow at the expense of Yahoo! and Microsoft’s Bing. Hitwise now reports April 2010: Google at 71.4%, Yahoo! down 1% to to 14.96%, Bing down 2% to 9.43%, Ask down 37% to 2.18%, and the remaining 78 search engines accounted for 2.03%. As these search engine wars continue it seems pretty clear where we are headed. However antitrust issues are on the horizon!

EU confirms Google antitrust probe

The EU Commission confirmed that 3 complaints were filed and Google’s blog indicated that:

The complaints filed with the Commission came from U.K. price comparison site Foundem, a French legal search engine called eJustice.fr, and a German search site called Ciao that was recently acquired by Microsoft Corp. Google pointed out in its blog that Foundem is a member of a trade group called iComp, which is largely funded by Microsoft.

Given Bing decline it’s no wonder that Microsoft is pushing the EU to try to reduce Google’s control over the search engine market.

New Look: Google Search Engine Reults

To make Google even more user-friendly Google has evolved and morphed into a new look again. Check out Google’s new search engine results:

However, look closely since Google is now asking if users want Google to access to their location...privacy redflag if ever there be one!  Stay tuned for more Google in the market as Google dominates the search engine market and much more!

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Facebook CEO Mark Zuckerman recently announced significant changes to Facebook expanding 100’s of websites with "open graph" and  “like” which may revolutionize the Internet. At the annual f8 Facebook outside developers’ conference on April 21, 2010 Zuckerman demonstrated "open graph" and how the use of “like” on hundreds of websites (including Yelp, CNN, Pandora, ESPN, and IMDb) will allow the 400+ million friends to share their likes which in turn will be posted to their Facebook pages. According to Mashable.com Facebook “has created a platform that allows sites and apps to share information about users in order to tailor offers, features and services to each one’s interests and tastes — even if that individual has never visited the site before.” Zuckerman explained how most information on the Internet is lost in time once posted, referring to a tweets, text messages, and the like, but the new Facebook "open graph" and "like" will permit information to live forever on the Internet.

Microsoft Docs on Facebook

In conjunction with the f8 conference Microsoft announced a new beta for Docs on Facebook to facilitate access to Microsoft apps through Facebook that “allows users to create, edit and share Word, Excel and PowerPoint documents via the new Docs.com Website. Users can then share those documents with their Facebook friends, as well as give them editing privileges.” Microsoft’s collaboration with Microsoft is clearly competition for Google, Google apps, and the new Google Buzz.

Senator Doesn’t “Like” Facebook’s Instant Personalization Features

Under the new "open graph" and "like" Facebook automatically changed the privacy features, so within days of Facebook’s announcement Senator Charles Schumer of New York wrote a letter to the FTC “urging them to create privacy guidelines for Facebook and other social networking sites.” We need to watch closely to see what, if anything, the FTC may do. My blog on January 14, 2010 included a link to an interview with Zuckerman where he commented that the age of privacy is over. So perhaps he was referring to the new "open graph" and "like" features may be part of his plan to actually make that happen

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A report that a number of privacy groups filed a complaint with the FTC to investigate includes this quote “Internet ad exchanges… are basically markets for eyeballs on the Web. Advertisers bid against each other in real-time for the ability to direct a message at a single Web surfer. The trades take 50 milliseconds to complete.” The April 8, 2010 complaint was filed by the Center for Digital Democracy, US PIRG, and the World Privacy Forum against Google, Yahoo, PubMatic, TARGUSinfo, MediaMath, eXelate, Rubicon Project, AppNexus, Rocket Fuel, and others. Among other allegations in the complaint is a “massive and stealth data collection apparatus.” How much privacy to we really have?

Privacy in Social Media

Seems like an interesting overlap with my recent blog about the fact that the FTC is already dealing with EPIC’s complaint that Google’s new Buzz significantly breached “consumers' expectations of privacy” at the same time that Google acquired Social Media Optimization company Aardvark. Since it is the job of the FTC to protect consumer privacy it will be interesting to see how both of these disputes evolve.

Hearst Said to Be in Talks for Web-Marketing Agency iCrossing

More interesting news is that Hearst might take over iCrossing.  iCrossing is one of the leading Search Engine Optimization (SEO) companies with a who’s who customer list including: Adobe, Bank of America, BMW, Epson, Fairmont Hotels, Mary Kay, MasterCard, Office Depot, and Toyota. Hearst is:

“one of the nation's largest diversified media companies. Its major interests include magazine, newspaper and business publishing, cable networks, television and radio broadcasting, internet businesses, TV production and distribution, newspaper features distribution and real estate.”

So the addition of SEO power for Hearst will make an interesting future for everyone. Not to mention the impact on Social Media Optimization that Google and others possess we can expect the FTC investigations to prove very interesting.

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A Chinese graduate student’s “paper on how to attack a small U.S. power grid sub-network in a way that would cause a cascading failure of the entire U.S.” was recently reported to the US House Foreign Affairs Committee. The paper entitled “Cascade-Based Attack Vulnerability on the U.S. Power Grid” was published in Safety Science a year ago. American scientists who read the paper agreed that there was no way that the power grid could be taken down as explained in the paper. Famous last words! The US is barely managing Cybersecurity and this paper should give us all pause to consider the implications.

Google Set to Depart

China is demanding that Google obey Chinese law as it departs which seem imminent now. Since Google entered China in 2006 it has been censoring content just as “China routinely blocks Internet content, shutting off access to sites such as Facebook, YouTube and Twitter.” The dominant search engine in China, Baidu continues to be successful albeit with Chinese censorship. Time will tell about other US based Internet companies such as Microsoft and whether they will stay in China and participate in Chinese censorship.

Chinese Media Furor

A recent report about a Chinese provincial Governor’s response to a scandal led to “rare display of unity, journalists, lawyers, academics and activists posted a letter of protest on the Internet demanding the Governor’s resignation.” Li Hongzhong, the Governor of Hubei Province, was incensed that a reporter had the gall to question him about a waitress at a karaoke bar killed a government official in self-defense. The waitress was later released and the Governor got a lot of heat on the Internet. Given the economic power and population, the Internet will continue to impact China whether the Chinese government wants the Internet impact or not.

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Hitwise reports that Facebook became the most visited website in the US for the first time. Kind of takes your breath away that a social media site is getting more traffic than the largest search engine in the US. Since Facebook just went over 400 million users this was probably inevitable, but since Facebook is also starting its own email system, Titan, it’s likely Facebook traffic will continue to expand.

Internet Jurisdiction Makes Life Interesting

My friend Victoria Van Buren blogged about my Texas Bar Journal Article for March about Internet Jurisdiction, but the March 2010 issue is entitled “The Attorney and Social Media” and here are other articles of interest:

My friend John Browning organized these articles which I think are most timely and interesting.

3rd Circuit Bars Child Porn Prosecution of Teen in Sexting Photo

Some headline in the ABA Journal that “upheld an injunction that bars the child pornography prosecution of a teen girl in Pennsylvania who appeared topless in a photo that ended up on high school students’ cell phones.” The court did reach the question whether sexting photos are free speech protected under the First Amendment because the prosecutor over-reacted and threatened the teenager. Unfortunately we will continue to see more sexting cases as Web 2.0 grows whether we like it or not.

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The recent conviction of 3 Google executives in Italy for a video posted on Google which showed the bullying of a disable teenager captured many headlines. No question that the video was in poor taste and Google took the video down within 24 hours of its posting after Google got 2 complaints. The conviction of the Google’s global privacy counsel, Peter Fleischer and two other executives raises significant issues. A fourth Google executive was acquitted, and Google plans to appeal these convictions. Does it make sense that Google, or any other ISP (Internet Service Provider), be liable for content posted over which the ISP has no control? The US Communications Decency Act of 1996 protects ISPs from liability since they have no control over content posted. How Google fares with these convictions may have an interesting impact on ISPs around the world.

Google Street View May Breach EU Law

Only to make things more complicated recent reports that the Google’s Street View violates EU Data Protection laws since they retain the images for too long. As well it was reported that “Switzerland’s data-protection agency in November sued Google for allegedly failing to comply with proposals to make it harder to identify people and cars on Street View.” Of course disputes regarding Street View are not new since claims of breach of privacy have been under way since at least 2008 in Japan.

Google has More EU Antitrust Problems

ComScore recently reported that Google has about 79% of the searches in the EU and the EU renewed its investigation about Google anticompetitive behavior. Google claims that Microsoft may be the source of the investigation since Microsoft owns one of the companies that complained. It seems reasonable to assume that the search engine wars will continue, but how the EU ultimately rules may have a far reaching impact.

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EPIC (Electronic Privacy Information Center) filed a complaint with the FTC that Google’s new Buzz significantly breached “consumers' expectations of privacy.” Many complaints were made after Google’s recent launch of Buzz, because Buzz automatically created “public circles of friends for users based on their most frequent Gmail contacts.” EPIC wants the FTC to order Google to make Buzz “opt-in.” What this means to Google’s social media evolution will be interesting to watch.

HEADLINE: “Facebook directs more online users than Google”

At the same time that Google’s social media is taking center stage a report was released that indicates that Search Engine Optimization (SEO) is being replaced with Social Media Optimization (SMO):

“According to Web measurement firm Compete Inc., Facebook has passed search-engine giant Google to become the top source for traffic to major portals like Yahoo and MSN, and is among the leaders for other types of sites.”

There’s no rocket science to understand that Facebook’s 400 million friends have changed communications forever and SMO’s impact of search engines and SEO cannot be ignored. As Facebook rolls out its Titan email system SMO is certain to expand.

Aardvark joins Google!

At the same time of this Buzz controversy Google purchased Aardvark which is interesting since Vark.com “has defined a new kind of social search: sometimes you want a person, not a web page, to answer your question.” SMO and SEO are in the middle of Google’s evolution. This is a lot to digest at one time. Stay tuned.

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Google added two new links for “My social circle” and “My social content” that permit Social Networking searches! This blending of the most popular search engine in the US with social networking is getting more interesting since “Google is striking real-time deals with both Facebook and MySpace. Updates from public pages on Facebook will appear in Google real-time search, as will any publicly posted comments on MySpace.” In the future hundreds of millions of friends on Facebook and MySpace will use Google to search.

Google “Show Options”

Many people may not have noticed that when you do a Google Search the results displays “Show options” which includes the following:

So whenever you do a Google search you can click on “>Any time, Latest” and you will find information that just happened seconds before. This service now permits real time searching rather than purely historical.

Twitter on Google and Bing

To make things a little more interesting Google just announced that it will add live results from Twitter searches. However Bing already has an early version http://www.bing.com/twitter. With the tremendous growth of Social Networking now blending into search engines seems logical and inevitable. Even though Google gives pointers on how to protect oneself with these new social network searches, Google still keeps searches for 18 months. It makes one wonder how private everyone’s information really is on Social Networks or Google.
 

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With all the press about the disaster for Google in China somebody had to benefit, and it turns out the predominant search engine Baidu will be the big winner. Baidu had 63.9% and Google had about 31.3% of China’s search engine’s market before the December attacks. Ironically Baidu was started by Li Yanhong, a.k.a. Robin Li in 2000 when he raised $26.2 million in venture funding including a modest investment from Google. Today Baidu has 7,000 employees and market value of $16.2 billion, however Google sold its stake in 2006. Google entered China in 2006 with an agreement to censor certain topics.  But whether Google departs or not, Baidu is sure to grow since many users of Google are worried about security. Of course that is ironic since many in China believe that Baidu censored a great deal more than Google.cn. 

Attack on Google

Apparently the attack on Google was through a security hole in Microsoft’s browser Internet Explorer (IE) including these versions:

IE 6 Service Pack 1 on Microsoft Windows 2000 SP4 has the bug. Moreover, the flaw exists in IE 6, IE 7 and IE 8 on supported editions of Windows XP, Vista and Windows 7, plus Windows Server 2003, Windows Server 2008 and Windows Server 2008 R2.

Some pundits are wondering why Google was using IE rather than Google’s browser Chrome, which is an interesting issue aside from the attack.

Microsoft's Ballmer: We're Staying in China

Microsoft CEO Steve Ballmer committed to stay in China even though Google appears to be ready to leave. “Google has been in China since 2006 operating under an agreement with the government that has the search giant purge banned topics from its Chinese search results. But the recent attack has Google saying it will no longer censor results per Chinese law and the company is threatening to pull out of the country altogether. “ Since Microsoft recently announced its plan to grow its search engine Bing in China it’s no wonder that Microsoft may stay notwithstanding censorship and vulnerability with IE.

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The EU finally concluded its antitrust case against Microsoft by allowing customers to select browsers from a variety of 12 options including Google (Chrome), Apple (Safari), Mozilla (Firefox), and Opera. Under the plan “in March Microsoft will issue an update that enables the more than 100 million European users of Windows XP, Vista and Windows 7 to choose among a variety of browsers available for installation in addition to -- or instead of -- its Internet Explorer.” Since Microsoft will remain liable for fines it is likely that Internet Explorer’s market share will decline to the benefit of others.

How Can Bing Compete in China?

Microsoft recently announced that it planned to enlarge Bing (its search engine) in China:

"Microsoft is committed to the China market and the search market in China is the most important strategic market for Microsoft," Microsoft told Reuters on Dec. 29. "We specifically set the search technology center in China to get a deeper understanding of what Chinese users need, to be able to deliver the best product to them."

However:

“According to research company Analysys International, as cited by Reuters, Chinese search engine Baidu currently leads the country's search engine market with 63.9 percent, followed by Google with 31.3 percent. Meanwhile, another research company estimated that Bing (which launched in China in June, and is still technically a beta) occupied less than 1 percent of the Chinese search engine market in the second quarter of 2009.”

So the likelihood of a Bing’s success seems remote any time soon.

Google Still Dominates

Since Google’s search engine continues to grow in the US and China it seems unlikely that Microsoft can make any inroads unless Microsoft changes its business plans. There is an increase in the use of cloud computing for business around the world which makes it debatable if users need new operating systems to replace older systems whether Microsoft, Apple, or Linux. Right now it is hard to tell how Microsoft’s new operating system Windows 7 will fare. If it is not a fabulous success, maybe Microsoft will only get smaller throughout the world.

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Web 2.0 must be for real, how else can anyone explain Members of Congress find YouTube, Twitter, Blogs, and Facebook the most effective way to communicate in 2009? Today NPR (National Public Radio) interviewed Republican strategist Mindy Finn (a partner and blogger at the political consulting firm Engage who helped Virginia Gov.-elect Bob McDonnell) said that "Members who don't have a lot of say or don't have much of a voice in Congress can use social media to talk directly to their constituents, to voters and to activists." Finn went on to say “"In the past, they might put out a press release and nobody picks it up. But now if they build up a network of blogger support, if they have a presence on Facebook or on Twitter, and they put out that same information, it can go virally across the Internet."

YouTube Offering Text Captioning

Google recently announced that it is making YouTube accessible to deaf and hearing impaired Internet users. Since the captions are English-language speech only the power of Google’s 51 languages will allow for automatic translation to millions of people around the world who do not speak English. This technology is not new and Google currently uses it to transcribe voice mail messages into .wav files with Google Voice. Of course this technology is not perfect but offers a dramatic impact on world-wide communications.

Federal Trade Commission Examining Google Acquisition of AdMob

What will happen if AdMob, one of the top sellers of iPhone banner ad apps and web pages, becomes part of Google’s empire? This acquisition would position Google to be a major player in the mobile advertising ecosystem and expand Google’s market power. It does not take rocket science to see that Members of Congress are taking advantage of YouTube and Web 2.0, so surely they will capitalize on mobile ad which Google can see. Without question President Obama’s use of Web 2.0 vaulted him into the White House, and clearly Members of Congress depend on Web 2.0 to be relevant and communicate with their constituents. Wonder what will happen with Web 3.0 in the future and its impact on politics?

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In 3 months Facebook grew another 16.7% to 350 friends worldwide which has led Facebook to create a simpler privacy policy to allow users to control who sees “each individual piece of content you create or upload.” All the more amazing since Facebook grew 200% between August 2008 and August 2009. Facebook founder Mark Zuckerberg’s recent blog that stating among other things that 50% of Facebook friends are member of regional networks, and today there are networks for the entire countries of India and China. The new plan is to remove these regional networks and hopefully create a simpler network and improve its privacy policy.

Facebook Statistics Are Amazing

The current Facebook statistics are pretty incredible and particularly that 35 million (10%) of the Facebook friends update their status every day:

• 50% of our active users log on to Facebook in any given day
• More than 35 million users update their status each day
• More than 55 million status updates posted each day
• More than 2.5 billion photos uploaded to the site each month
• More than 3.5 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) shared each week
• More than 3.5 million events created each month
• More than 1.6 million active Pages on Facebook
• More than 700,000 local businesses have active Pages on Facebook
• Pages have created more than 5.3 billion fans

So is it any wonder that Facebook needs to be vigilant in managing personal information of its friends and users. Time will tell how Facebook’s privacy policy works out.

Google Searches for 2009 - Facebook is Number 2!

As 2009 ends Computerworld announced the top search engine hits for the year and of course Michael Jackson was number one, but Google’s number two search of the year was Facebook! Also on Google’s top 10 list of searches was “Twitter, Windows 7 and Tuenti, which is a Madrid-based, invitation only social networking site that some call the Spanish Facebook.” AOL and Yahoo! also listed Michael Jackson as the top searched name, but from the lists varied widely- “AOL and Yahoo! lists popular search terms like '70s icon Farrah Fawcett, who also died this year, socialite Kim Kardashian, singer Rihanna and actress Megan Fox.” Interesting message about the search engine wars that Google, AOL, and Yahoo! would be so different.

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No major changes in the war over search engines in past two months, first place Google grew to 65.4% (+.5%), second place Yahoo! declined to 18% (-.8%), and third place Bing (Microsoft’s newly named engine formerly “Live Search) grew to 9.9% (+.5%). Interestingly the two greatest search increases are for YouTube (+7%) and Bing (+8). So messages can we get from the US search engine competition? Well for starters Google’s and Bing’s growth make sense, but what about the decline for Yahoo!? These numbers may make a Microsoft Bing alliance with Yahoo! more likely.

Wolfram|Alpha -Bing’s New Ingredient?

Microsoft recently announced that Bing would add an enhancement that relies on the computational information from the relatively new search engine named Wolfram|Alpha. There is a video interview of Stephen Wolfram on a Microsoft blog in which he says "What we’re seeing with Microsoft and Bing now is a first step toward taking computational knowledge and deploying it in an application, in this case a search engine."

Search Engine Optimization (SEO)

I assume everyone knows that the SEO industry has grown dramatically over the past 14 years (since the 4th Big Bang of free Internet Explorer with Windows 95), and one can even get a SEO Certification. Of course SEO is a success because Google and most search engines save all user inquiries for 18 months so that search engines can monetize this information and also as by-product maybe help improve the value of searches for users and websites. Stay tuned as SEO and search engines continue to evolve.

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Watching the world economy meltdown in the past year it’s not much of a surprise that Google value increased by about 25% to number 7 in the world with an estimated value to an $32B! Other technology companies did not fare as well as reported by BusinessWeek and Interbrand:IBM increased by about 2%, Microsoft lost about 4%, Intel declined by 2%, and Oracle lost 1%. So Google’s growth during the down economy means that Google must be doing many things right.

Google Could Become The Leader Source of News

With the announcement of Fast Flip Google now has a site where users can get all the news they need without ever leaving Google. Google reports that the “service is being initiated with the cooperation of about three dozen publishers, including major news outlets like BBC News, The New York Times, The Washington Post and Newsweek; magazines like Cosmopolitan, The Atlantic, Esquire and Good Housekeeping; and Web-only publications like TechCrunch, Salon.com and Slate.” In the meantime Microsoft added a service to Bing called Visual Search which adds a new way to view news and expand the uses of Bing search engine. Given the troubles in the newspaper world is any wonder that Google and Microsoft have new plans to take greater roles in news?

Google Finally Using DoubleClick to Boost Display Ads

After making a fortune on small text ads now Google will make redirect its energy to boosting display ads. No one should be surprised by Google use of DoubleClick to migrate to displays ads and be in direct competition with Yahoo! Yahoo! is the current king of display ads and Google’s move will definitely impact Yahoo!’s advertising revenue. We need to stay tuned to see how things play for Google and Yahoo! Stay tuned.
 

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One might ask if every public employee must keep every email forever given this report that the Massachusetts Secretary of State ordered the seizure of City of Boston computers searching for deleted emails. This order follows a public records request by the Boston Globe to the Mayor’s office and which yielded only 18 emails during a 6 month period. If the computer forensics specialist cannot find the deleted emails one may only guess what can happen, including possible criminal proceedings.

Saving Every Email Forever

There are products that allow companies to save every email that is delivered to the mail server before the recipient ever gets the emails, which means that as we routinely delete junk, spam, or personal emails they are nonetheless saved forever. Of course how much storage does one need to save every email forever? Probably more than exists. So as a matter of reality businesses must establish Records Retention Policies that are practical and comport with actual practice and allow for the destruction of junk, spam, and personal email.

Google to the Rescue

After Google acquired Postini a couple of years ago it was not clear what was going on until Google announced its entry into e-Discovery with this bargain: “Flat $45 per user per year for up to 10 years of retention. Email archiving has never been simpler or more affordable.” Since ComScore reports that about 65% of all searches are conducted on Google one can be pretty much assured that every Judge in the US uses Google, so litigants probably will be on safe ground to tell Judges that all emails are stored on Google’s systems. Google not only offers emails on their Cloud with specialized search software, but also the peace of mind that Judges probably will think this a great idea to assure that emails are not destroyed.

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No surprise that dozens of filings were made in opposition to the proposed settlement of the lawsuit between the Google and the Authors Guild and Association of American Publishers which was filed in “2005 by the authors and publishers against Google over its plan to digitize millions of books from libraries without authorization from rights holders.” Although Google has received the support of Sony, civil rights groups, and antitrust experts, there were notable opponents to the settlement including “individuals, rival companies like Amazon and Microsoft, advocacy organizations, groups representing authors and publishers and even some foreign governments.”

EU Opposition of Google’s Settlement

Many voices in the EU complained at a hearing that the proposed settlement would give Google more power to exclusive rights to sell million of out-of-print works even though the copyrights are still valid. Not much of a surprise that Microsoft is backing the anti-Google settlement groups in the EU. Many groups in the EU feel that since they did not participate in the settlement that they were discriminated against.

What’s Next in the Lawsuit?

Federal District Judge Denny Chin must now sort through the filings to try to determine if the proposed settlement properly protects the authors, or else the case may continue on to trial. Among other issues for Judge Chin to consider are antitrust concerns that Google’s control over these works would give Google too much market power. There are many antitrust issues on the horizon for Google it seems with many opponents, not just with books but more broadly in the entire space known as eCommerce. Stay tuned as we see Google and eCommerce evolve.
 

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A recent ruling about an alleged anonymous slanderous blogs about a New York City model made it to the front page of every news media on the Internet when a New York City Judge ruled that Google had to identify the name of the person who ran the blog called “Skanks of NYC.” When Liskula Cohen (the defamed model ) learned the identity of the anonymous blogger was Rosemary Port, a 27-year-old student at the Fashion Institute of Technology, Cohen decided to not pursue any slander claims against Port. In an interesting turn of events, now Port claims that Google somehow breached a fiduciary duty and Port’s attorney is bringing a claim against Google for $15M.

Internet Anonymity Protection

Without question the First Amendment of the US Constitution provides the right of free speech and citizens can anonymously make public statements with impunity, except if the statements are slanderous, libelous, or violate some law.

What Did the Judge Say?

Cohen filed a lawsuit in January 2009 against the unknown blogger (I assume Jane Doe) and in the normal course of a Cybersmear lawsuit a subpoena was issued to Google to learn the identity of the anonymous blogger. The legal question was whether the anonymous blogger breached the contractual terms of service with Google. If there was a breach by the blogger then the blogger lost their right to anonymity. You have to look at the Google Blog Terms of Service, Privacy Policy, and Content to determine if the blogger violated these terms. Google must have decided that Port violated the contractual terms and then whether her identity became public was up to the New York City Judge.

Apparently Manhattan Supreme Court Justice Joan Madden believed there was slander and wrote in her decision that "the thrust of the blog is that [Cohen] is a sexually promiscuous woman," and accordingly Google was obligated to disclose Port’s identity since Port violated the contract terms with Google.

How Does Cybersmear Work?

Cybersmear cases have been around for a while and often relate to anonymous postings on sites like Yahoo! Finance where people regularly make anonymous statements about stock values, alleged criminal behavior by corporate officers, and you can just image. Generally once the identity of John or Jane Doe is made public the parties work things out, the posting stop, and there are no headlines.

In this instance Port claims the only person on the Internet who saw "Skanks of NYC" blogs was Cohen, and ironically because of Cohen’s lawsuit and the alleged violate by Google of Port’s rights, now everyone on earth knows. I’m sure there a lesson in this case but generally I’m reminded of the New Yorker Cartoon where two dogs are talking and one says to the other “I had my own blog for a while, but decided to go back to pointless, incessant barking.”

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Tim O’Reilly coined the term Web 2.0 in 2002 and in a recent report O'Reilly encourages more social networking for the government. Of course he’s not the Lone Ranger on Gov 2.0 as there are plenty of advocates including my good friend Ellis Pines who blogs about Gov 2.0 and encourages the use of GovLoop – a social network for Gov 2.0.

Are We Cybersecure?

Okay so great, Gov 2.0 encourages more social networking. But a recent report that the White House’s senior aide on cybersecurity resigned because she was “not empowered” is alarming since it is clear no one wants to be the Cyber Czar. In the meantime there are never ending reports of widespread Cyberattacks in the world, and hackers apparently have no problems breaching commercial websites.

Enlarging the use of social networking only compounds the problems of cybersecurity, so at this moment none of us should feel so safe. What do you think?

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A permanent injunction was entered based on Microsoft’s patent infringement that prohibits the sale of Word products for certain custom XML codes! Also US District Judge Leonard Davis (Eastern District of Texas in Tyler) ordered Microsoft to pay $40 million for willful infringement and $37 million in prejudgment interest. This injunction and award of willful damages follows a May, 2009 jury verdict that ordered Microsoft to pay i4i $200 million for infringing patent 5,787,449 that deals with metacodes. Needless to say Microsoft will appeal and/or settle. However, in the meantime this will send shockwaves in the IT community.

Word Free Online v. Google Apps
 

Days before the Judge Davis’ order Microsoft announced that Word would be available free online in a Software as a Service (SaaS) model in direct competition with Google’s Apps. This makes for interesting news since Word is the mainstream word processor in the world and has become the de facto standard. So coupled with the permanent injunction precluding Microsoft from selling Word with certain XML features, this is an intriguing development.
 

SaaS Word Processing?
 

Microsoft Office, Google Apps, and OpenOffice all provide pretty much the same Word type documents, operate a great deal alike, so do users need to have their word processor on their computers? Laptops? PDAs? Or just available on the Internet in a SaaS? Time will tell, but most users like the ability to process Word documents on their computer without relying on Internet access, regardless of which word processing software they use. SaaS and Cloud systems have in common that their customer data resides on the hosted systems, not in the confines behind firewalls and on users’ computers.
 

This is how Google’s offers its Apps:

“Outsourcing to Google lets you run your business instead of running routine IT systems.
* Google Apps is 1/3 the total cost of competing solutions.
* No special hardware or software is required, and Google runs the servers so you can focus on your business.
* Get better reliability than on-premises solutions, with a 99.9% uptime guarantee.**
* Data can remain on Google's infrastructure, rather than on unsecured devices.”

Everyone on earth can see how much power Google has developed and Google Apps is a great success. However since Google is not in the top 20 most trusted companies it can certainly make one wonder where is the Internet going?

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Google is always making news, but the report that the Google Apps have new features to compete with Microsoft Office is interesting as more users rely on free Google Apps. It’s hard to fathom that Wikipedia could be used as a news source, but Google is trying that out since so many users rely on Wikipedia as a source of reliable information. Without question Google continues to grow and evolve in interesting directions, clearly something we all have to watch.

Google vs. Microsoft (including Free Windows 7)

Notwithstanding the ongoing search engine wars between Google and the universe, Google Apps are apparently improving at time with Microsoft users are unhappy with the additional features in Office 2007 which causes new complications for users. Specifically the new features in Google spreadsheet are an improvement over Excel, and with the general unhappiness of Microsoft Vista clearly many users are awaiting Windows 7. So Microsoft’s original game-plan to move the PC world from XP to an new operating system, and of course related revenue from upgrades to the Office Suite, got a major stall since Vista has been such a major dud. So it’s not much of a surprise that Microsoft has revealed that users can get Windows 7 free or very low cost when released later this year if they buy a new computer now with the upgrade.

Wikipedia As A News Source?

Often Wikipedia shows up at the top of many Google searches and as result users tend to rely on Wikipedia has grown to over 2.9 articles. But recently Google News has also been including Wikipedia links so that users can read more about topics. Interestingly enough no one at Google asked Wikipedia and the folks at Wikipedia learned of the new Google News service use of Wikipedia by reading the Nieman Journalism Lab. With this evolution Google News has positioned the collaborative written source Wikipedia in direct competition with the New York Times, Washington Post, AOL, CNN, and other news sources.

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Behavior Advertising

A recent privacy blog discussed the February 2009 Federal Trade Commission Staff Report entitled “Self-Regulatory Principles For Online Behavioral Advertising,” and the opt-out questions posed by Congress are at the heart of whether new Internet privacy laws are required. The Internet economy, and certainly Google is chief example, are dependent upon the current behavioral advertising model and surely will be impacted by a change in the privacy laws in the US.

eMail Surveillance

Most US citizens believe that their emails are private. However employee privacy regarding emails in the workplace (not personal webmail) may be misplaced since in the US emails are private to employers and in the EU, Canada, and other countries emails are private to the employees. Nevertheless there are more questions being asked in Congress about how many e-mails are being collected in the name of security. The recent report that National Security Agency exceed its authority by intercepting emails and phone calls continues to be debated in Congress. Given President Obama’s cybersecurity agenda it will be interesting to see how the US congress can reconcile the expectation of personal privacy and need for Internet security. These debates will continue as the Internet evolves. Stay tuned for more.
 

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Apparently the US Justice Department is investigating anticompetitive behavior concerning among others Google, Yahoo! , and Apple since many Internet companies restrict recruiting and hiring of one another’s employees. Since anticompetitive employment agreements in the technology industry are the norm it’s particularly interesting that the Justice Department is pursuing these companies. Internet and IT companies rely of these non-competition provisions to protect trade secrets and Intellectual Property so it will be interesting to see how this develops.

EU Unhappy with Microsoft for Not Distributing a Browser

Following the antitrust dispute in the EU regarding Microsoft’s alleged monopolization of the browser market, Microsoft recently announced that when it distributes Windows 7 there not be any browser. The EU regulators are unhappy with this solution, even though on the surface it does seem that the complaining browser companies (Google, Mozilla, and Opera) should be pleased since they claimed that Microsoft’s embedded Internet Explorer violates antitrust laws.

Are Antitrust Laws Out of Touch with the Internet?

Since antitrust laws evolved from the need to try control monopolies in the 1800’s how much sense does it make to still use these concepts in the Internet world of 2009? Microsoft’s deployment of its operations systems took over the PC market was great for the users since before Microsoft there was no operating system standard on PCs. My Internet Third Big Bang was the 1981 advent of the PC, not just because IBM and Microsoft got into the market, but as result of the PC Clones using Microsoft operating systems a de facto standard developed on Microsof. As a result users could depend on continuity and consistency between software and applications. So maybe the US and EU should re-evaluate antitrust laws for the Internet and IT world that we live with today and in the future.

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No surprise that the Chinese government blocked social networking on the eve of the 20th anniversary of the military crackdown at Tiananmen Square. As a matter of fact just before the Olympic Games began in August 2008 China limited Internet access as the government wanted control over information before and during the Games. Many people from the West were surprised since China was hosting the international Games, but it seems logical that a totalitarian government would not change its behavior in such a circumstance.

More Social Networking

It’s about time that smaller businesses got the clue that they need to use social networking to promote their activities, so it’s no surprise to read reports that small businesses are directing their efforts to attract traffic with social networks. Targeted advertising works even better on the Internet, but learning how to identify potential customers has always been a primary goal of marketing.

In February 2009 the Federal Trade Commission issued its FTC Staff Report entitled “Self-Regulatory Principles For Online Behavioral Advertising” following public hearings and “sixty-three comments on the Principles from eighty-seven stakeholders, including individual companies, business groups, academics, consumer and privacy advocates.” Since the US relies on self-regulation of privacy these comments were all considered before releasing the Principles. One need merely review Google’s Analytics site to how much information about is captured about our activity on the Internet. The fact that this monetized is one thing, but the potential loss of privacy has many alarmed.

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There are reports that Microsoft’s new search engine known as Kumo is about to be released (ultimately it may be called “Bing”) which will replace “Live Search.” Apparently Microsoft leaked copies of Kumo recently and from all reviews there’s nothing too radical, but what is radical is the Wolfram|Alpha search engine which was seen on TV news last week. The Wolfram|Alpha search engine provides users very different information, however since it is so radically different it remains to be seen how successful its approach will be.

Update on Search Engine Rankings

comScore just released its new search engine rankings without much surprise- Google increased slightly from 63.7% to 64.2% of all Internet searches between March and April 2009 while Yahoo!, Microsoft, Ask, and AOL were relatively flat. Since Microsoft (20.4%) and Yahoo! (8.2%) searches combine for 28.6% of all Internet searches, there has been renewed speculation that Microsoft and Yahoo! will form an alliance to try to get a larger market share and be more competitive with Google.

Microsoft vs. Google- Search Engines and Browsers

From earlier blogs you will recall that Google is complaining about Microsoft’s deployment of Internet Explorer in the EU as anticompetitive. Interestingly part of Microsoft’s defense is apparently that by expanding competition in the browser market in the EU will only encourage more Google Internet searches which will be anticompetitive to Microsoft. So it will be interesting to see how Microsoft’s deployment of Kumo may allow Google to argue to the EU that Microsoft’s defense should fail since Microsoft is aggressively competing with Google in the search engine market.

What do you think? I welcome comments.
 

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Since Google accounts for more than 63% of all Internet searches, it’s no wonder that Google’s stock fell last week when Google users had significant problems when Google’s servers were overloaded and Google services were operating at a crawl. Google claims that there were problems in 3 of their Asian data centers (out more than 30 data centers worldwide) which affected about 14% of Google’s users. Many Internet users rely on Google for services beyond searches, including gmail, Google Apps, and Google Latitude to name a few. Google’s server failures meant many users could not conduct business during this outage period.

Protecting Privacy Google

A recent article in Computerworld gives Google users 6 tips about protecting privacy:

1. Know your privacy rights: Use the Google Privacy Center.
2. Protect your content on the services you use.
3. Turn off the suggestion feature in the Chrome browser.
4. Turn off Web History.
5. Opt out of interest-based ad serving.
6. Add SSL to Gmail.

However, since most Internet users do not take the time to review privacy policies it’s unlikely that this advice will be heeded by many Google users.

More Google

Google announced a number of new services for desktops and mobile phones which includes search capabilities in multiple contexts so that when searching from a cell phone, Google will take into account the GPS location and what other mobile users have searched in that locale. Also Google will offer a new tweak to search on Search Options that allows a user to drill by topics, time, or images. About to make its debut is a much hyped search engine known as Wolfram Alpha.

Google Too Successful?

A big question may now be has Google been too successful? As Google offers these new features to sell ever more ads space, surely Google hopes to draw more users. Without question the recent system slow-down is an ominous sign of potential bad news on the horizon. No doubt Google’s search engine competitors like Yahoo!, Microsoft, and AOL are watching with great interest to see if they can capture Google users who may abandon Google if the system outages become a pattern.
 

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Recent reports from the EU potentially impact a number of Internet and IT industry issues of great import, including plans for new laws to protect consumers from IT security breaches, Microsoft’s strategy to defend antitrust claims regarding the Internet Explorer (IE) browser, and a ruling that Intel violates antitrust laws.

EU Notice for Loss of Data

The EU plans to pursue new laws that would create more stringent reporting of IT security breaches, more like the US and Japan. Of course IT breaches are not a new topic in the IT community nor on this blog. However the new California law in 2003 requiring notice to consumers was a model that many states of have adopted, and citizens are clearly better off that they are notified of possible loss of their personal information.

Microsoft Browser Strategy

Recent blogs that Google, joined Mozilla and Opera complaining about Microsoft’s anticompetitive distribution of the IE browser is taking an interesting turn. Apparently Microsoft plans to argue in defense that restrictions on distribution of its IE will strengthen Google’s search-advertising market in an anticompetitive way. Apparently the EU estimates that 85% of the browsers in the EU are Microsoft’s IE, but if Microsoft has its way IE will continue to be distributed with Windows Operating Systems as it has since 1995.

Intel to Get an Adverse Ruling

The EU is expected to rule this week that Intel’s marketing in the EU violates antitrust laws, and Intel’s 81.9% market share is not because it has superior products. Rather the EU will rule that Intel has illegally handed out rebates and paid computer makers to delay products with rival chips.

EU Impact on IT

It’s probably about time that the EU enacted IT security breach laws to protect consumers like many US states. The EU is taking IT very seriously, and not reacting well to US IT companies’ market strategies that may be acceptable in the US. As more countries provide high speed Internet access to all citizens, countries around world will need to be even more vigilant to protect their citizens, by informing them of IT security breaches to protect personal identity and from anticompetitive behavior.

Since I see the Internet as the greatest social change in the history of humans (since there are no boundaries of time and geography), it seems reasonable that governments will only have a higher responsibility to protect citizens since we are all more and more reliant on the Internet and IT.
 

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After teaching the Law of eCommerce since 2000 I have established my own perspective of 5 Big Bangs which propelled the Internet, three of which were described in a recent blog:

1st Big Bang- Invention of the punch card for the 1890 census by Dr. Herman Holerith (which led to the IBM);

2nd Big Bang- World War II invention of the first modern day computer for monitoring the tides to help with the June 6, 1944 D-Day invasion of Normandy;

3rd Big Bang- Launch of the IBM Personal Computer in August 1981;

4th Big Bang- Distribution of Microsoft’s Internet Explorer in July 1995 with Windows 95; and,

5th Big Bang- Web 2.0 with the advent of social networking as predicted by Tim O’Reilly in 2002.

Where is the Internet Going?

It’s very difficult to tell, but when Alexander Graham Bell invented the telephone in 1876, no one could have predicted that I would use my cell phone to make a phone call atop the Great Wall of China in 2005. So where the Internet is going is not easy to predict, but as we observe changes it’s clear that the direction is not entirely what we may expect. In 1998 when Google launched no one could have predicted its success and that would account for more than 63% of all Internet searches, have vast wealth, and that Google would provide an Operating System among many accomplishments.

Web 2.0: FaceBook at its 200 Million User, Doubles Membership in 8 Months!

Big celebrations in August 2008 FaceBook when it registered its 100 million user, now about 8 months later about to register its 200 million user. Web 2.0 (my 5th Big Bang of the Internet) must be for real, but why has FaceBook been so successful? It must be fulfilling a social need. Without question when FaceBook when started in February 2004 it was aimed at college students, but today the fastest growing segment of its membership is the 35 year and older category. As social networking evolves other Internet activities might replace FaceBook, but for the time being the growth is mind-boggling. Please stay tuned for the 6th Big Bang!
 

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Google (Chrome browser) and Mozilla (Firefox browser) joined forces in the EU to complain about Microsoft’s marketing of Internet Explorer (IE) originally brought by Norwegian browser company Opera, and T3 filed an antitrust complaint in the EU against IBM for adversely impacting the mainframe market. Neither Microsoft nor IBM are strangers to antitrust actions in the US and EU, and these complaints are just chapters in very long novels. Both companies have had profound impacts on IT and the Internet, and Microsoft and IBM have an interesting history together which makes these EU complaints all the more interesting.

US v. IBM

From its origins with the 1890 Census Dr. Herman Holerith’s 80 column punch card (what I call the 1st Big Bang of the Internet) led to a company called IBM which had a monopoly on punch cards until its consent decree in the 1930s. Then in January 1969 the US Justice Department brought an antitrust action against IBM for monopolizing the computer market. At the time IBM sold its hardware, software, training, and all services as a bundled product. That is, if someone wanted the mainframe software they also had to purchase hardware, training, and everything else from IBM. So in the July 1969 IBM signed another consent decree to unbundle which led to the development of hundreds of companies for supplying software (like University Computing and Computer Associates), hardware (disk drives, memory, and the like). The antitrust trial was heard by a judge in New York for many years before the claims were dismissed when President Reagan came to office in 1981. Interestingly enough one of the lawyers who represented IBM in the trial was David Boies who represented the US government in the antitrust trial against Microsoft in 1998.

IBM and Microsoft Changed Computing Together

In 1981, the same year that the Antitrust suit was dropped by the US government, IBM launched its Personal Computer (PC) as most folks know (my 3rd Big Bang of the Internet). The IBM PC’s operating systems (OS) was a product call IBM-DOS (Disk OS) from an upstart company in Redmond, Washington called Microsoft (MS). When IBM introduced the PC this was a major departure for IBM in that this was IBM’s first product which used components made by others including the OS. There were a number of other PC’s on the market before 1981, many of which relied on an OS from Digital Research called CP/M (Control Program for Microcomputers) which was very popular. Apparently IBM could not reach an agreement with Digital Research, but did reach an accord with Microsoft. Although IBM wanted to restrict the use of IBM-DOS like Apple had done with it OS, but ultimately the Microsoft OS version (MS-DOS) was widely used on the clones (Compaq, HP, and many others) with the advent of the Phoenix Technologies BIOS (Basic Input Output System) that permitted all Intel based PCs to use MS-DOS.

Impact of IBM and Microsoft

Both companies have had a dramatic impact on IT and the Internet as is quite obvious, and these claims in the EU may chart the future of each company. Holerith’s 80 column punch and its progeny which started around 1890 last until the advent of the Graphic User Interface (GUI) which was popularized by Apple’s Lisa (from a license with Xerox) and Microsoft’s Windows products. Ironically one of the most significant events for the evolution of the Internet (my 4th Big Bang of the Internet) was in about 1995 when Microsoft started distributing IE which without additional charge. Microsoft’s IE became ubiquitous and the notwithstanding Microsoft’s anticompetitive business practices, the use of the Internet exploded. So we all should watch closely to see how the EU deals with the claims against IBM and Microsoft as the EU’s rulings will likely impact the future of IT and the Internet.
 

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No surprise at all that the New York Times reported that there has been a rash of mistrials because jurors are searching Google and Wikipedia about the parties, lawyers, and subject matter of the trials. As well, jurors are sending texts, emails, and Tweets (on Twitter) during trials. The traditional rules of trial require that judges admonish jurors to do no independent research about the dispute and to only rely on the evidence presented during trial and argument of the lawyers, and not discuss the case with anyone, even other jurors until deliberations. Actually in days gone by it was relatively impossible to stop jurors from doing their own investigations of going to crime scenes or reading about parties in newspapers, or watching television stories about trials in process. There was virtually no way to police jurors from discussing among themselves the issues in dispute before deliberations. But in today’s Web 2.0 world it’s not possible to restrict jurors at all.

Power of Cells

Without a lot of imagination it is easy to realize that our cell phones allow jurors to text, send emails, post blogs, and send Tweets, not to mention search the Internet while sitting in a jury box or room. So even if courts were to confiscate jurors’ cell phones during trial, surely when the jurors go home at night they can use their cells and the Internet to their hearts’ delight.

Evidence Present in Court

Lawyers spend most of their time in preparing for trial by examining trial witnesses in depositions and reviewing documents to determine what evidence will be presented during trial. The opposing parties do everything possible to restrict bad evidence under the rules of evidence and procedure, and it’s the job of judges to determine what evidence may be shown to jurors. Actually evidence is presented in trial by asking witnesses to identity and authenticate, and then it’s up to the jury to weigh all the evidence and the credibility of the witnesses who vouch for the evidence.

Accuracy of Information on the Internet?

One of the sharp realities of the Internet is that there is no assurance that just because information is found on the Internet that it’s true and accurate. This has been one of the challenges of the Wikipedia in that the articles are posted and updated by individuals who may, or may not want the truth to be portrayed. As a matter of fact many judges will not allow lawyers to cite Wikipedia as legal authority because of skepticism of the authenticity of the content. On the other hand just because Google, Yahoo!, or other search engine happens to push a particular link, pdf, or website to the top of its search list does mean that there is any truth to the content found at that url.

Where are we Headed?

It’s likely that the mystique of a jury trial where jurors only rely on evidence presented in the courtroom will never be the same. Without question the number of mistrials will only grow and cause great difficulty for the judicial system.
 

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This recent headline story about Google’s Operating System (OS) is significant as Google also announced, among other things, that it will also offer a phone service. It is interesting to observe Google’s growth and evolution in the Internet, but also now to see what other creative services it will offer. As pointed out in a recent blog, Google’s purchase of Postini a couple of years ago has propelled Google into the e-Discovery arena.

OS Competition

What a fascinating development that Google will offer an OS to compete with Microsoft and linux. Microsoft’s stumble with Vista and race to deliver System 7 potentially puts Google in the middle of the every user’s desktop/laptop. Apparently Google’s OS Android is being migrated to the Asus eeePC’s and will be marketed by year’s end.

Grand Central Phone Service

Google’s purchase last year of Grand Central was interesting since Grand Central offered its customers consolidated voice mail and text messages. Google phone service system assigns new phone numbers, so if you call a Google Grand Central number all other assigned phones will ring – home, office, and cell. If you don’t answer, a voice mail will be recorded and sent to you by email. In addition to free domestic calls there will be a charge for international calls, and the service will permit 6 way conference calls. Google says there will be no advertising associated with domestic calls.

Where is Google Going?

Good question, world Internet domination or what? It seems pretty clear that Google’s evolution has been characterized by one success after another. Notwithstanding failed projects, Google successful developments have been a poster child for the creative change. But many users do not bother to appreciate that Google is built on advertising and so by using Google’s various services Google users are providing Google more information about themselves. Desktop/laptop users have a great deal of personal and business information on their systems and when Google’s OS is applied is there any wonder that Google will use the data on the computer for some commercial purposes? Consider that Gmail searches email content and provides users advertisements accordingly, so if you send an email to a friend about going to the World Series, along-side the email the recipient will get hotel and travel ads. While users know and appreciate what they are getting, many individuals fail to realize that Google uses the content of Gmails and no doubt with the Google Grand Central product also uses the content of voice mails. Users should review Google’s terms of service and understand what they are getting for free!
 

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When DARPA started in 1962 as part of the US’s reaction to Russia launch of Sputnik in 1957 no one could have foreseen its evolution to 2009 with FaceBook, YouTube, and Google. A recent article questions whether we need a new Internet since the current hodgepodge is not designed for the future. Clearly there are people working on re-tooling the Internet, but how it will continue to evolve is interesting but unclear. The UK and US are busy trying to provide high speed Internet access to the every home, but the Spectrum changes for TV for HD broadcast will free up the old Spectrum and will provide new cell and Internet services unknown before.

4G is Coming

AT&T announced its plan to roll out 4G by 2011 which would replace the spotty 3G network now in use. AT&T, Verizon, and the other providers will use the Long-Term Evolution (LTE) wireless broadband which is supposed to handle downloads at 100 Mbps and uploads of 50 Mbps for every 20 MHz of spectrum…which will clearly change the way we operate today.

Do We Need a New Internet?

With the new high speed access in cell phones and at our desktops this should be a clue that it’s time to rethink the entire Internet structure. Maybe the UK and US plan for broadband access to every home will be revised based on 4G, and surely there will be an evolution in desktop computing. Not just that Microsoft and Open Source developers will offer new operating systems or browsers, but rather a major transformation about how technology is used. When in graduate school in 1972 I took a course on the computer as a public utility which was an interesting idea at the time…however it does not look like that ever happened. However the juxtaposition of 4G with the Internet may require a whole new approach to what how we operate. This should be an interesting evolution for the Internet…not Web 2.0 or Web 3.0, rather maybe Internet 2.0.

I welcome comments on this Blog.
 

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Google recently starting promoting a new service App they call Google Message Discovery which creates a new, huge change for e-Discovery. This service uses Postini which provides email filtering for hundreds of companies. When Google acquired Postini in 2007 many wondered what the heck’s going on? How did email filtering services fit in to the Google game plan? At a flat $45 per user per year for up to 10 years without additional costs for storage, this new service App creates a cloud email service that will likely have a monstrous impact on e-Discovery.

How does it work?

With no new costs to users subscribers merely employ the Google Message Discovery that stores all emails and attachments on Google’s servers. Users may establish retention periods for different categories of email users and groups. The process is built to provide support for litigation hold and legal review. Searches are easy and allow most anyone to review emails and attachments without the need for any sophisticated proprietary e-Discovery software technologies. Also the cost to store e-Discovery email and attachments will be fixed.

Of Course There are Issues

Google Message Discovery seems to be great for managing email going forward, but legacy emails still need to be managed and will be litigated for some time to come. It also remains to be seen how the courts will deal with attorney-client privilege issues, confidentiality of intellectual property, and a myriad of other evidence issues.

What’s the Impact on e-Discovery?

Without question Google’s new service may be the greatest change on email discovery since courts finally realized that 95% of all information is electronic and started requiring parties to deal with electronic evidence. What makes this new service so extraordinary is that there is a fixed cost, no new hardware or software required, and litigation support is built in. Google demonstrates again that it is so creative, but undoubtedly the Google Message Discovery will change the way courts will see email discovery.
 

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A recent annual report from Ponemon Institute and TRUSTe ranks the top four most trusted companies as American Express, eBay, IBM, and Amazon. However Google did not make the top 20, yet Yahoo! and Facebook made the top 20 for the first time. This makes for interesting news, but given the search traffic and size of Google it seems strange.

Google IS The Main Search Engine

The latest rankings of search engines shows that Google accounts for 63.1%, Yahoo! 20.5%, Microsoft 8.5%, Ask 4.2%, AOL 3.7%. Since Yahoo! and AOL are in the top 20 most trusted companies and account for only 12.2% of the searches, it makes the Google’s 63.1% seem even more peculiar that it is not in the top 20. Apparently the overwhelming majority of searches are made on a site that is not as trustworthy as Amazon.

Who’s Complaining about Google Now?

A group of academics and lawyers in Japan is demanding that Google stop making pictures of streets in Japan and delete all images already captured. You may not be aware that Google maps has driven vehicles around the world with cameras taking 360 degree pictures at ground level. Which is fine of course if you are looking at someone else’s property or planning a trip, but do people really want to have their homes displayed for the world to see? Another big question is, how is Google monetizing this? Perhaps this is partially the reason that Google is not one of the top trusted companies.
 

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Facebook claims to have more than 120 million active members and it is the 4th most trafficked site in the world. Of course there are many other popular social network sites including LinkedIn and MySpace to name a few, and only to make things more interesting a recent report indicates that more than half of MySpace visitors are 35 or older. Not much of a surprise that more mature individuals are getting into social networking as the Internet evolves.

What about the Content?

The terms of use vary between Facebook and other social network sites, but one common provision in the terms of use is that the users grant these sites a worldwide license to the user content that is irrevocable, perpetual, non-exclusive, transferrable, royalty free to use, copy, or just anything they want. Facebook also limits its liability to the amount of monies paid (if any) or $1000. Even users of Google Apps grant Google a license to their content.

Web Universal ID?

Facebook recently announced Facebook Connect which is an Universal ID that will allow its users to only logon once and then navigate to third party sites. Not much of a surprise that Google, Yahoo!, and MySpace are also developing similar technology. However, it seems that either few individuals don’t care or understand that they are providing Facebook, MySpace, Google, and the all the rest with licenses to their personal content. Regardless of what users understand the growth of the social networking websites will be based on increased data from their users’ content which will generate more online advertising revenues.
 

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A recent a Google announcement of Wiki services in Google to improve the search experience and allow users to rank search results has a number of individuals questioning exactly what’s going on. Just like most wiki projects, this project did not in a straight line. Apparently this new service came from a Google Wiki Search Team rather than Google Labs.

How does the new Google Wiki work?

The new Google Wiki will allow users to conduct searches, and then permits them to reorder or delete certain results. That way when users return for future visits to Google they get their search results in the order they want. Only the user has access to their own search results with its Google Wiki reorganization, so they can keep this private.

What’s really going on?

Some skeptics complain that Google’s run out of ideas and that they are fixing something that wasn’t broken. Maybe, but perhaps there’s more method to this madness – since users’ can control the priority of their search results, won’t Google have even more powerful advertising data about users? Google users are more likely to spend more time on Google, which can only help Google’s business. Privacy of personal information should be a major concern to Google users since Google will have a personal insight about search priority of search results, not to mention the deleted search results. Stay tuned for future developments!
 

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The saga of where Yahoo! is headed took another turn when Google decided that it was not worth the federal scrutiny for Google and Yahoo! to work together. Clearly to the two largest search engines working together meant an increase in revenue for Yahoo! Microsoft a spurned suitor made it clear that it did not want Google and Yahoo! working together. As well, the Department of Justice (DOJ) has been reviewing this joint marriage since it was first announced.

How Did the Elections Impact the Cancellation?

Google’s decision to abandon the Yahoo! deal happened a few days after the election. However, Google CEO’s Eric Schmidt campaigned for President-Elect Obama, so one might have concluded that Google would have continued with this deal. In an unrelated event Thomas Barnett, Assistant AG for the Antitrust division of the DOJ, who was skeptical of the Google deal, resigned the day following Google’s decision to abandon the Yahoo! deal. What’s the message here?

What’s Going to Happen Now?

All indications are that Yahoo! has to do something for economical survival and maybe a new deal with Microsoft will be more appealing since the deal with Google ended. Google is the 800 pound gorilla in the search/ad business and everything it does to expand will continue to anticompetitive scrutiny, not unlike virtually every move that Microsoft makes leaves it subject to court scrutiny. However a deal between Microsoft and Yahoo! is anything but a sure thing since the DOJ will want to scrutinize any proposal that may be anticompetitive. As a matter of fact, a DC District Judge still gets reports about Microsoft’s compliance with the 2001 Antitrust Settlement.
 

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When Google purchased YouTube for $1.65B a few years ago there was in expectation that the site would be a money maker, not just a magnetic for video traffickers. Of course Google did not expect the troubled economy that we live in today nor that Viacom to file a $1B lawsuit for copyright infringement. Google’s new offering will allow YouTube users to purchase digital goods from Apple’s iTunes or Amazon.

AdSense for Games

Google also announced beta software called AdSense for Games which allows video, image or text ads to be placed at the start, end, or change of level for online games.

It’s About Advertising

Notwithstanding these complex economic times, recent estimates of global online advertising revenue are an astonishing $81.1B by 2011, and Google is obviously one of the greatest movers. Since the estimates of revenue from YouTube are a measly $200M for 2009, Google’s new sale of digital goods should significantly increase Google hope to generate $27B which they estimate. It’s also hard to image that Google’s 10th birthday will be in November and it is one of the richest companies in the world. In the meantime the US government doesn’t know what to do about Google proposed advertising partnership Yahoo! so that deal is now on hold. We all need to stay tuned, but be assured Google will generate more data about visitors to their kingdom which clearly translates into ad revenue.
 

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