Category: Google & Search Engines


The right to life, liberty, and a favorable ranking

Google uses its algorithms to set the Page Rank of websites. Anyone with a google toolbar can immediately see that Concurring Opinions has a pagerank of 5. Pageranks are determined based on Google’s algorithms, which are supposed to related to a site’s popularity (and to some degree, to longevity, as links build up). The system seems to work pretty well. has a pagerank of 7; the brand-new has a pagerank of 0 at present, but will doubtless climb the pagerank . . er, ranks . . . as it develops a track record of links.

Pageranks are more than just bragging rights, however. They affect how one’s site is listed in search results; this means dollars. And so we see this lawsuit:

A parental advice Internet site has sued Google Inc., charging it unfairly deprived the company of customers by downgrading its search-result ranking without reason or warning. . . .

KinderStart charges that Google without warning in March 2005 penalized the site in its search rankings, sparking a “cataclysmic” 70 percent fall in its audience — and a resulting 80 percent decline in revenue.

It seems problematic to suggest any right to a particular rank from a third-party ranking service. After all, there’s no contractual relationship here. And torts, like interference with business relationships, seem like a real stretch. Google isn’t a common carrier or anything else; Google is a third party, which happens to rank websites.

This isn’t such an unusual activity; entities create rankings all the time. If we chose to do so, we could rank something here at Co-Op — law blogs, perhaps — and I don’t think that we would have a responsibility to any of the entities we ranked. If our (hypothetical and non-existent) rankings listed at #1 and Conglomerate at #10, I don’t think that Gordon Smith could sue us — even if those rankings drove more traffic from Co-Op to Volokh than they did from Co-Op to Conglomerate. After all, we have no contract with any of them. (Similarly, if U.S. News lowers the rank of my law school, I don’t think that I’ve got an action against them.)

But I’d love to hear otherwise. And I’m ready to adapt with the times, if needed. I fact, I’ve got a complaint against Eugene Volokh all ready to go — you see, I don’t think he’s been listing Co-Op high enough up on his blogroll . . .


The Google Subpoena Case: A Google Victory

google.jpgOn Friday, Judge James Ware, a U.S. District Judge in San Jose, CA, issued a decision in Gonzales v. Google, Inc., No. CV 06-8006MISC JW (Mar. 17, 2006), the case involving a government subpoena for Google search queries. A few days before Judge Ware released his opinion, he stated that he would be ordering Google to turn over some information, though not everything that the government was demanding. Media reports indicated a victory for the government, as these headlines suggest: “Judge Siding With Feds Over Google Porn Subpoena” (AP) and “Google Faces Order to Give Up Records” (Boston Globe).

But Judge Ware’s written decision strikes me as much more of a victory for Google and privacy than for the government.

The subpoena was issued because the government wanted information for use in ACLU v. Gonzales, No. 98-CV-5591, pending in the Eastern District of Pennsylvania. That case involves a challenge by the ACLU to the Child Online Protection Act (COPA), 47 U.S.C. § 231. Google wasn’t even a party to that case, but the government suboenaed from Google (1) URL samples: “[a]ll URL’s that are available to be located to a query on your comapny’s search engine as of July 31, 2005” and (2) search queries: “[a]ll queries that have been entered on your company’s search engine between June 1, 2005 and July 31, 2005 inclusive.” Subsequently, the goverment narrowed its URL sample demand to 50,000 URLs and it narrowed its search query demand to all queries during a 1-week period rather than the two-month period mentioned above. Google still raised a challenge, and the government again narrowed its search query request for only 5000 entries from Google’s query log.

Under Federal Rule of Civil Procedure 26, a subpoena may be quashed if the “burden or expense of the proposed discovery outweighs its likely benefit.” The court (Judge Ware) began by analyzing the government’s request for a URL sample, pointing out the paucity of the government’s explanation for its need for the information. The court observed:

The Government’s disclosure of its plans for the sample of URLs is incomplete. The actual methodology disclosed in the Government’s papers as to the search index sample is, in its entirety, as follows: “A human being will browse a random sample of 5,000-10,000 URLs from Google’s index and categorize those sites by content” and from this information, the Goverment intends to “estimate . . . the aggregate properties of the websites that search engines have indexed.” The Government’s disclosure only describes its methodology for a study to categorize the URLs in Google’s search index, and does not disclose a study regarding the effectiveness of filtering software. Absent any explanation of how the “aggregate properties” of material on the Internet is germane to the underlying litigation, the Government’s disclosure as to its planned categorization study is not particularly helpful in determining whether the sample of Google’s search index sought is reasonably calculated to lead ot admissible evidence in the underlying litigation.

One would think, after reading this paragraph, that the government has failed to establish a justification for the URLs. Nevertheless, the court attempted to “imagine[]” and “envision” a possible use for the information the government is seeking. The court then concluded that it would “give[] the Government the benefit of the doubt.”

This was the partial victory that the government won, and it wasn’t a very big victory. The second half of the opinion was all Google. This latter part of the opinion dealt with the government’s demand for search queries — the part of its demand that implicated privacy. The court rejected the government’s request for the search queries — even after the government had repeatedly backed away from its initial demands. The government had begun by demanding two months worth of search queries (constituting millions of queries); it then backed down and demanded queries for just a one week period (a substantial number of queries); and it recently had further retreated to asking for just 5000 queries. This was a dramatic retreat, but the court still sent the government packing.

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Three Cheers for Categorizers!


Dan mentioned an indefatigable blogger who’s now taxonomizing over 600 law-related blawgs. I’ve heard a lot of critics of bloggers complain about “navel-gazing” in this field. But this type of work is exceedingly valuable, as I try to demonstrate in a recent piece on “information overload externalities.”

In my view, categorizers are a uniquely beneficial “genus” in the information ecosystem, and they deserve special solicitude from copyright law. Categorizers should be able to provide small samples or clips from whatever works they organize or index, without begging for licenses from the copyrightholders who own the sampled work.

Unfortunately, categorizers have been getting some rough treatment by courts lately. For example, Google recently lost a battle against “erotic image purveyor” Perfect 10 because the low resolution images on its “image search” might reduce Perfect 10’s sales to the “cell phone viewing” market. The Author’s Guild (which appears neither to represent all authors nor to be a guild) is suing to stop Google’s digital book indexing project—even though Google permits any aggrieved copyright owner to opt out! They believe Google should have to work out, individually, permissions for each of the millions of books they want to index.

Imagine if uber-taxonomizer 3L Epiphany had to ask permission to quote or cite to any of the blawgs he compiled. Are we really going to let a few cantankerous holdouts veto an effort to archive and index the world’s expression? I hope not, for a couple reasons…

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Epstein on Google

Richard Epstein criticizes Google’s book library feature, at Financial Times:

If Google can unilaterally put this burden on copyright owners, then so can all of its rivals, forcing both publishers and authors to expend valuable resources just to preserve the status quo ante. This “negative option” approach has been roundly rejected in traditional contexts, as with audacious publishers who send notices telling hapless addressees that they’re now subscribers for a year unless they return some opt out notice.

I’ll leave it to the IP experts around here to say whether he’s right or wrong on the details. If he’s right, it doesn’t bode too well for Google books.


Google’s PageRank and Google’s Justice System

google.jpgGoogle doesn’t look kindly upon attempts to game its PageRank system. Google PageRank is the way Google determines what order to display search results. The higher a page’s rank is, the higher up the page appears in a search results list.


According to Google:

PageRank performs an objective measurement of the importance of web pages by solving an equation of more than 500 million variables and 2 billion terms. Instead of counting direct links, PageRank interprets a link from Page A to Page B as a vote for Page B by Page A. PageRank then assesses a page’s importance by the number of votes it receives.

PageRank also considers the importance of each page that casts a vote, as votes from some pages are considered to have greater value, thus giving the linked page greater value. Important pages receive a higher PageRank and appear at the top of the search results. Google’s technology uses the collective intelligence of the web to determine a page’s importance. There is no human involvement or manipulation of results, which is why users have come to trust Google as a source of objective information untainted by paid placement.

What happens when a website tries to game Google’s PageRank system? Philipp Lenssen has an interesting post about one such case over at Google Blogoscoped:

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Do No Evil and Perhaps Do Some Good: Google, Privacy, and Business Records

google5.jpgI just blogged about the case where the goverment is seeking search query records from Google. I am very pleased that Google is opposing the goverment’s suboena. According to the AP artice:

Google — whose motto when it went public in 2004 was “do no evil” — contends that submitting to the subpoena would represent a betrayal to its users, even if all personal information is stripped from the search terms sought by the government.

“Google’s acceding to the request would suggest that it is willing to reveal information about those who use its services. This is not a perception that Google can accept,” company attorney Ashok Ramani wrote in a letter included in the government’s filing.

In contrast to Google, other search engine companies such as Yahoo complied with the subpoenas without putting up a fight. Google is to be applauded for taking the effort to rebuff the government’s request.

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Government vs. Google

google.jpgAccording to the AP:

Google Inc. is rebuffing the Bush administration’s demand for a peek at what millions of people have been looking up on the Internet’s leading search engine — a request that underscores the potential for online databases to become tools for government surveillance.

Mountain View-based Google has refused to comply with a White House subpoena first issued last summer, prompting U.S. Attorney General Alberto Gonzales this week to ask a federal judge in San Jose for an order to hand over the requested records.

The government wants a list all requests entered into Google’s search engine during an unspecified single week — a breakdown that could conceivably span tens of millions of queries. In addition, it seeks 1 million randomly selected Web addresses from various Google databases.

The government is seeking in its motion to have the court direct Google to comply with a subpoena for “the text of each search string entered onto Google’s search engine over a one-week period (absent any information identifying the person who entered such query).” Originally, the government had asked for “[a]ll queries that have been entered on your company’s serch engine between June 1, 2005, and July 31, 2005, inclusive.” According to the government’s motion, the government narrowed its request to the text of search strings after extensive negotiations with Google.

The government’s request strikes me as tremendously inappropriate and proof that we need more protections against government access to personal data. I have written extensively on this issue and will address it in other posts.

I was struck by the resemblance of this case to another case back in 2004 where the Bush Administration attempted to subpoena records in its attempt to defend the constitutionality of a law. That case is Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004). In Northwestern Memorial Hospital, the government subpoenead 45 records on partial birth abortions in order to gather information to defend the constitutionality of the Partial-Birth Abortion Ban Act of 2003.

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Building the Google Brand, Courtesy of DOJ

According to today’s New York Times, Google is resisting a Department of Justice subpoena seeking records on Google users’ search queries. Yahoo, AOL, and MSN previously complied with the government’s request for this data. I will leave the legal issues to Dan and other privacy experts, but my first response to this story was that Google’s legal posture is an awesome marketing move. Google’s aggressive efforts to protect search information convey a message to consumers that they are the “privacy protective” websearch brand. Even if Google is ultimately forced to produce this information, its decision to resist the subpoena signals that the company will be privacy protective in the future.

This may have a very positive marketing effect. Since all search engines are free, and since Google is at least as good a product as its competitors, I imagine many surfers will take the path of greatest privacy protection. Really, how many web users – no matter how benign their searches – would prefer to be monitored by the government? Of course, when it comes to the porn consumer – and by all accounts there are millions of them – it’s going to be Google or bust!


Welcome to the Google-Borg is running a banner headline today for an article: “Google becoming an auxiliary brain.” Here’s the article, and here’s the thesis of the reporter, Elizabeth Weise:

If we are the sum total of our knowledge and experiences, then the Internet is a collection of other people’s knowledge and experiences. And Google — so ubiquitous that it has become its own verb — allows us to tap into that collection.

I generally enjoyed reading this, and it’s way too easy to nitpick USA Today, but here are a few reactions:

1) It’s a pretty clear example of the cyborg trope isn’t it? Google isn’t billed as just a novel information source, like a television, it’s billed as a “brain” — a technological extension of human biology. And like the brain of the Star Trek Borg, it is a collective mind we now share. This collective brain-sharing is billed not as scary, but nifty.

2) Despite the excerpt above, if you read this, Google appears to be getting a great deal of credit for the Web itself. Throughout, Weise’s language makes this an article about Google as information repository, not as search provider. To be clear: Larry, Serge, and company built a great search tool that helps you find information that other people put on the Web (and one that hands you an advertisement along the way).

3) In somewhat of a contradiction, it appears that people who provide information on the Web are not to be trusted. Weise quotes a research librarian from Georgia:

And even when malicious intent isn’t the problem, mastery of a subject can be, says Jacobson. “The opinions that get heard are from people who have a lot of time to create websites, not necessarily the people with the best information.”

Can’t trust those people who have time to create websites, can you? Oh wait — isn’t that the definition of my Googlebrain? What is curious is that the answer seems to be no, because this comment doesn’t follow the discussion of Google, but… Wikipedia. So Wikipedia is less trustworthy than the Web (aka “Google”)? Oh well.

Further reading: Danah Boyd on the Seigenthaler fuss.


Should Google, Yahoo, and Microsoft Help China Filter Searches?

china1a.bmpAn interesting article from Salon discusses how Google, Yahoo, and Microsoft assist the Chinese government with censorship. The companies filter out search results that the government wants to censor, and they help the government track down individuals engaging in criticism and dissent:

To conduct business in China, popular Internet companies Yahoo, Microsoft and Google have had to accommodate a regime that forbids free speech, bars political parties and jails journalists. This means filtering searches on their sites, censoring news and providing evidence in the trials of political dissidents — or risk having their sites blocked in China. Forced to choose between ignoring the world’s hottest market or implicitly endorsing a system of censorship that a recent Harvard study called “the most sophisticated effort of its kind in the world,” the companies have decided to cooperate.

“Business is business,” Jack Ma, CEO of, which controls Yahoo China, told the Financial Times. “It’s not politics.”

How do companies cooperate? The article explains:

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