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Thursday, December 3, 2009

Google and the Death of Privacy: Also, Maybe Lawyers Shouldn't Use Google

Some comments attributed to a Google executive (see the CNBC special, originally broadcast at 8 PM eastern on 12-03-09) are disturbing.  (See this New York Times preview.)   There is a portion where CNBC's Maria Bartiromo's questions whether Google's practice of saving all our searches raises serious privacy issues, and the executive responds to the effect that if we are worried about someone knowing what we are searching, we shouldn't be searching it in the first place.

Read for yourself Google's CEO Eric Schmidt's alarming comment, courtesy of this link.

These attitudes illustrate an attitude which I believe you may find deeply troubling.  It is not just the attitude of being able to invade your privacy.  It is the attitude of being entitled to know what you are doing and to commercially exploit it.

I will play devil's advocate today.   We dumb Americans are the ones who have it wrong.   We think we have privacy, or should have it, or should be entitled to it. (The related constitutional rights are not at issue; they will be addressed separately.)   Perhaps all of those thoughts are mistaken, at least for purposes of running your daily, mundane tasks and errands.  

Under the devil's advocate approach, it is most foreigners who have the correct mindset.   They assume that someone is watching.   (Who is it, or who they work for, is irrelevant; they believe that whoever it is and whatever institution they work for is simply up to no good, however they define that, and they act accordingly.)   They may have grown up in societies where "rights" were illusory, or even contradictory; therefore, they regard the Constitution as just another piece of paper that is given lip service and routinely violated.   This may result in a degree of self-censorship, and most certainly one of modesty.   We can take turns arguing the pros and cons.   My devil's advocate contention is that the foreigners' approach is better suited for dealing with a "Big Brother" society.

What I find troubling is the notion of the entitlement by other private citizens to invade your privacy, through stealth means or some sort of implied consent (which can be given by you simply using a computer, as the arguments may go).   We are not talking about law enforcement purposes or other appropriate uses of the police power of the state.   We are dealing with issues of the ability of other private citizens to abuse your personal information, with little restriction and while assuring us that they can be trusted(WARNING!!! DANGER!!!)

This brings me to a final note (for now).   Attorneys who routinely engage in the investigation of various subjects (e.g., people, companies, etc.) may use search engines as a "starting point" for some research.   Attorneys should be careful to avoid putting anything in a search which could identify or compromise a client.   Whether that is a just and proper policy can be debated within the appropriate realms of bar association committees.   As a practical matter, lawyers should try to use the maximum discretion in such matters in order to protect both their clients and themselves, as Google executives are not assuring us (and there is likely no one who can assure us with certainty) that this search information will not at some time in the future fall into the hands of an unscrupulous person. 

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