White Paper ~ Michael Zimmer (Information Society Project, Yale
Law School)
The freedom to move through both physical and intellectual space
resonates within many of the fundamental values and aspirations of
American culture, including free and open inquiry, personal autonomy,
and liberty. New information and communication technologies are frequently
designed to foster increased mobility within these spheres in support
of the preservation of these values. For example, Web search engines
have emerged as a ubiquitous and vital tool for the successful navigation
of the growing online informational sphere. As Google puts it, their
goal is to “organize the world’s information and make
it universally accessible and useful” and to create the “perfect
search engine” that provides only intuitive, personalized, and
relevant results. Meanwhile, new Web 2.0 infrastructures have emerged
with the promise to empower creativity, to democratize media production,
and to celebrate the individual while also relishing the power of
collaboration and social networks.
The (inevitable) combining of Google’s suite of information-seeking
products with Web 2.0 infrastructures – what I call Search 2.0
– intends to capture the best of both technical systems for
the benefit of users. By capturing the information flowing across
Web 2.0, search engines can better predict users’ needs and
wants, and deliver more relevant and meaningful results. While intended
to enhance intellectual mobility in the online sphere, this paper
argues that the drive for Search 2.0 necessarily requires the widespread
monitoring and aggregation of a users’ online personal and intellectual
activities, bringing with it particular value externalities, such
as the privacy of individuals’ online intellectual activities.
These search-based infrastructures of dataveillance contribute to
a rapidly emerging “soft cage” of everyday digital surveillance,
where they, like other dataveillance technologies before them, contribute
to the curtailing of individual freedom, affect users’ sense
of self, and present issues of deep discrimination and social justice.
By amassing a tantalizing collection of, admittedly, innovative and
useful tools, coupled with requiring the divulgence of personal information
as a precondition for using many of their new information and communication
technologies, Google has constructed an information-seeking environment
whereby which individuals are continuously integrated into a larger
infrastructure of dataveillance. Roger Clark provides a prescient
warning about the threats such an infrastructure might pose:
[The] real impact of dataveillance is the reduction in the meaningfulness
of individual actions, and hence in self- reliance and self- responsibility.
Although this may be efficient and even fair, it involves a change
in mankind's image of itself, and risks sullen acceptance by the masses
and stultification of the independent spirit needed to meet the challenges
of the future. …In general, mass dataveillance tends to subvert
individualism and the meaningfulness of human decisions and actions.
Thus a kind of Faustian bargain emerges: Search 2.0 promises breadth,
depth, efficiency, and relevancy, but enables the widespread collection
of personal and intellectual information in the name of its perfect
recall. If left unchecked, potential cost of this bargain is nothing
less than the “individualism and the meaningfulness of human
decisions and actions.”
What options exist for renegotiating our Faustian bargain with Search
2.0? One avenue for changing the terms of the Faustian bargain is
to enact laws to regulate the capture and use of personal information
by Web search engines. A recent gathering of leading legal scholars
and industry lawyers at to discuss the possibility of regulating search
engines revealed, however, that viable and constitutional solutions
are difficult to conceive, let alone agree upon. Alternatively, the
search engine industry could self-regulate, creating strict policies
regarding the capture, aggregation, and use of personal data via their
services. But as Chris Hoofnagle reminds us, “We now have ten
years of experience with privacy self-regulation online, and the evidence
points to a sustained failure of business to provide reasonable privacy
protections.” Given search engine companies’ economic
interests in capturing user information for powering Search 2.0, relying
solely on self-regulation will likely be unsatisfying.
A third option is to affect the design of the technology itself.
As Larry Lessig notes, “how a system is designed will affect
the freedoms and control the system enables,” I argue that technological
design is one of the critical junctures for society to re-negotiate
its Faustian bargain with Search 2.0 in order to preserve a sense
of “individualism and the meaningfulness of human decisions
and actions.” Potential design variables include whether default
settings for new products or services automatically enroll users in
data-collecting processes – or whether the process can be turned
off. Or the extent to which different products should be interconnected:
For example, if a user signs up to use Gmail, should the Personalized
Search automatically be activated? Should the user automatically be
logged in to other services? Ideally, new tools can be developed to
give users access and control over the personal information collected:
In the spirit of the Code of Fair Information Practices, a Google
Data Privacy Center should be built to allow users to view all their
personal data collected, make changes and deletions, restrict how
it is used, and so on. Through such an intervention in the design
of Search 2.0, there is hope that our Faustian bargain can be re-negotiated
to counter its externalities.