By Carmi Levy, Betanews
That sound you heard coming from the general direction of Italy earlier this week was the sound the Internet makes when it becomes just a little bit less free.
When an Italian court convicted three senior Google executives for breach of privacy, sentencing them yesterday to a six-month suspended sentence, it set a dangerous precedent. Unless the case is turned over on appeal, such a precedent could force every Web services provider on the planet -- including Google, Yahoo, and Microsoft -- to be completely accountable for every piece of text, audio, and video that any Average Joe decides to upload to his servers.
Four bullies, many victims
The case revolved around footage uploaded to Google Video in September 2006 that depicted a group of four teenagers beating up a Down Syndrome child. It was the site's most-viewed video before Google received complaints and removed it two months later. Prosecutors said the video violated the victim's privacy and that Google should have moved more quickly to remove it from its servers. They originally charged four executives with violating Italy's privacy laws and with defamation. They convicted three of them -- chief legal officer David Carl Drummond, ex-CFO George De Los Reyes, and privacy director Peter Fleischer -- on the privacy counts and acquitted them of defamation. The fourth defendant, Arvind Desikan, was cleared of all charges. (The four bullies were convicted in youth court.)
The executives are expected to appeal -- not to avoid jail, because the judge imposed suspended sentences on all of them, but to ensure the outcome doesn't force monumentally impossible data and content management rules onto every Web services operator on the planet. Such legislative-imposed oversight, unthinkable at first and every blush, would be akin to asking AT&T to vet every phone call made by every landline and mobile subscriber. "Ridiculous" only begins to describe the prospect.
It's all in the definition
In assessing the merits of the case against Google, the court chose to define Google as an Internet content provider and not an Internet service provider. We all know that the average ISP simply doesn't have the cycles to actively monitor and respond to everything its users do online. The Italian justice system gets that, too. And in defining Google as a content provider, instead, it chose to lump the company into the same boat as newspapers, magazines, television broadcasters and other conventional media outfits.
Which would be lovely and workable if, like the average newspaper, Google exclusively published its own material. But it doesn't. It facilitates the publishing of material submitted by millions of subscribers. It's one thing to be the gatekeeper of material submitted by a hundred or so reporters and editors, and quite another to run infrastructure that manages an endless torrent of material submitted by countless, usually anonymous, end users. It's massively shocking and more than a little disappointing that the judge in this case allowed such a definition to stand, and serves as yet another reminder that the court system, in Italy and elsewhere, continues to lag the rapid evolution of technology and its impact on common behaviors in society.
When a ruling can't stand
I believe this case will be turned over on appeal because the standard of care for publishers of their own content is necessarily different -- by virtue of the much lower, controllable level of content -- than the standard of care of providers who host sites that publish user-provided content.
If, however, my worst nightmare comes true and the ruling stands, then the climate within which services like Twitter, Facebook, Gmail, and YouTube (which Google bought soon after the offending Italian video was posted to Google Video) will become very chilly, very quickly. Believers in the Apocalypse could easily conclude that these services would all cease to exist after being shuttered by owners freaked out by the daunting prospect of actively monitoring so much content in real-time.
The rest of us know, of course, that this won't ever happen, but that doesn't mean the Italian judiciary's message hasn't resonated deeply in communities around the world. We've gotten the message, Italy, that services like Google need to do a better job policing what goes on in their own backyard. We've also learned, again thanks to the Italian court, that it's time to get back to reality and figure out workable frameworks within which that can actually happen. Convicting their senior leaders using legislation designed for the dinosaur media age isn't the answer. Instead, nations interested in protecting their Internet-using citizens need to leverage appropriate government or quasi-government bodies to put partner with them to enhance end user privacy and balance individual protections against the risk of heavy-handed censorship.
Ask a Canuck for advice
Canada got the message and, as a result, is now seen as a global leader in the drive to balance individual and collective rights in the Internet Age. Its Privacy Commissioner, Jennifer Stoddart, played hardball with Facebook last year, forcing the social media darling to tighten its privacy policies and procedures. Facebook's penance in Canada has since been deployed globally. More recently, Comm. Stoddart took notice following the Google Buzz launch earlier this month, and is currently looking into the new offering in light of complaints that it plays fast and loose with users' private data.
Notice Canada didn't sue either company's senior leaders. It chose a more direct, and ultimately more successful, route to ensure the services took reasonable care on behalf of their subscribers.
Shocking as it is, the Italian ruling does serve a somewhat beneficial purpose in that it focuses attention on an issue -- online privacy and service provider and end user accountability -- that's long been shunted off to the side in the rush to release the next coolest thing. We've been so focused on the technology of social media that we've forgotten that all these great tools can significantly accelerate the rate at which innocent people can be victimized by those who choose to do harm. In the old days, transgressions like the Italian video wouldn't have gone much beyond the inner circle of victimizers and victims. Today, they can go viral in no time flat. Symbolically punishing the guys who wear suits won't fix anything.
Carmi Levy is a Canadian-based independent technology analyst and journalist still trying to live down his past life leading help desks and managing projects for large financial services organizations. He comments extensively in a wide range of media, and works closely with clients to help them leverage technology and social media tools and processes to drive their business.
Copyright Betanews, Inc. 2010
