Day 8 Predictions

For those who aren't familiar, here are Creative Commons' and Google's explanations of DMCA Notice and Takedown Procedures, one example of Due Process online

Should there be Due Process Online

It seems like there should be, though we can't predict where the folks from Google believe it should come from. On the one hand, you might think that Google is "just" a company, and their due process obligations are not greater than those of any other private entity who effects your life: i.e. send a letter to the complaint department and pray. At the entire other end of the spectrum, you might think that Google is such a critical point-of-control online that the government should have no problem regulating them in areas from copyright to even their handling of search results and their imposition of the death penalty. My guess is that Google believes itself to be in the former, "leave-us-alone" pile.

One thought is that due process is important in the legal system because nobody has a choice about whether they are subjected to its processes. However, the market may incentivize a proper balance of due process from online service providers. For example, if the Google death penalty becomes so pervasive that the search results are no longer relevant enough for users, or if unfairness generates enough badwill that users will switch to a different search engine, Google may be incentivized to offer different processes. In reality, Google's status as an incumbent would make these factors unlikely to affect Google's decision making but it is possible that they could have effect in less mature fields with more competitors.

It's great how the website with the article on the Google death penalty was filled with mostly internal links, which seems to be intended to raise its Google rank.

As it is, Google and other service providers like facebook are a black box. In the Death Penalty article it seemed that a site could be given the death penalty without even knowing it had done something wrong; theoretically a company could set up spam that attempts to increase the page rank of a competitor with the intention it gets the Google Death Penalty. Moreover, some non-malicious actors whose sites are infected with malware can be dramatically hurt by the Google StopBadware partnership; they might claim they've been punished without Due Process, but Google's courterargument that they're helping to increase web safety is compelling. In light of the complexity of the issues and the spectrum of people whose lives and businesses Google can affect, clearer guidelines are needed and more open and transparent procedures for resolving cases.

Our guest, however, might point out that spammers are infinitely creative, and trying to set up rules in advance to deal with every possible situation is just inviting people of ill-will to take advantage of Google. Thus, it might be argued that the company should have every right to optimize its product for the vast majority of non-malicious users around the word. For those reasons, along with the additional burdens that would place on Google, our guest is unlikely to be receptive to imposing additional procedure and transparency, but maybe an appeal to the "Don't be evil" side of the company would help?

What about companies that aren't as obviously influential as Google (but hope to be). It seems a lot of us might be offended because of something akin to the "essential service" that Google has--so we become rightfully critical of how they punish/banish users. But how might other companies know when they cross the threshold from bullied to bully?

Due Process Defaults

There are at least two default possibilities for due process of takedowns on the internet: (1) Due process afforded before takedown (default on), and (2) take down immediately upon request and afford due process to restore the content (default off). Google will probably take the stance that (2), default off, is a more appropriate standard for internet due process. Since internet content can do a great deal of harm in a very short period of time, it makes sense to take it down immediately (after someone has complained that it might be harmful information) and create a process by which the uploaded can ask that it be restored. That way the damage of offensive content is mitigated, but could not be unilaterally censored. (also, this process probably does the best job of limiting the liability of companies like Google, YouTube, etc). I think one of the biggest problem companies such as Google face is however that after summary proceedings, which in Europe can take more than 3 months after the lawsuit was filed, the procedure on the merits can take years and years (up to 6 or even more years), so it takes too much time until the case comes to an end (unless parties are willing to settle). Another problem are the huge damages (imposed on a daily basis in case of non-compliance) that are imposed very easily and run up very quickly. I would like to hear the thoughts of the guests on this.

The counter argument to the above is that this cripples the generatively of the internet. If anyone can request that content be taken down which web companies must comply with, it would be possible for anyone to (at least temporarily) gag the production of new content. A better compromise might be to require that the requester make some showing of who they are and how they will be harmed (at something resembling a probable cause standard) before web companies must comply with such a complaint.

Due process is needed for the protection of the party against which actions to be taken, and in the interest of public notice. According to Facebook terms of service, an account will be disabled if it is found to repeatedly infringe other people's intellectual property rights. Here a due process is needed to disable an account on Facebook. How many times does "repeatedly" refer to? Who have the final say on this "infringement" of other people's intellectual property rights? Hope to hear more from our guest on their practice to deal with this, and how they balance between the alleged owner of the right and the one against whom the action to be taken.

It would also be interesting to hear how different companies have complained and whether any of them have slayed the Giant - known as Google. Have any ever threatened back or been able to have some worthy leverage against Google?

Google and China

Although today's class isn't about this topic, it's hard to believe it won't come up. It will be interesting to hear whether the Google guest will have a response to Jason's concern that Google disengaging with China will allow unscrupulous actors to dominate the world's biggest internet market, and that Google, even if it had to make compromises, could do more good than evil by working inside China.

Yes, The voice of "Google in China" not "Google China" is around for a while. It will be interesting to hear how Google will do business in China if it finally decided to pull out. This will have a huge impact on not only the internet users in China, but also the resellers and strategic partners of Google China.

I think there is some connection between the Google-China news and today's topic. From a macro perspective, what kind of due process should be given to Google (or any other type of Internet service provider) before the decision is made to force them to withdraw? Today's speaker should have some good insights into Google's experiences with Turkey to might help us understand what the coming fight with China may look like. Another thing to consider with regard to today's topic is whether there should be (if any) due process afforded to China itself - by releasing the publicity statement, Google is essentially making wide allegations against (presumably) the Chinese Government - does this raise due process concerns? Was this the best or only way to handle it? It certainly got the world's attention, and I do find it doubtful that China would have responded in any other way.

I absolutely agree that Google-China has the flavor of a due process question--although we should keep in mind the different types of "rights" in play (perhaps there's a fundamental human right not to be turned over to hostile authorities, and a consumer right to retain control over one's data, but is there really a right to be listed in a search engine? or to have access to such a search engine at all?). Just as what we call "rights" may be flexible, "due process" could be flexible too--for instance, does a GNI decision count as due process, even if it's only an association of private parties? For some additional context on these issues, check out this excellent article on Google, Turkey, Thailand, and free-speech concerns, which seems to indicate Google is much more interested in establishing a process than some of our classmates above predicted.

Another concern: will there be due process for those individual's whose email accounts were breached? Will they be informed, and what, if anything, would they be entitled to?