net.wars: Information Commissioner, where is thy sting?
by Wendy M Grossman | posted on 24 July 2010
Does anyone really know what their computers are doing? Lauren Weinstein asked recently in a different context.
I certainly don't. Mostly, I know what they're not doing, and then only when it inconveniences me. Don't most of us have an elaborate set of workarounds for things that are just broken enough not to work but not so broken that we have to fix them?
But companies – particularly companies who have made their fortunes by being clever with technology – are supposed to do better than that. And so we come to the outbreak of legal actions against Google for collecting wifi data - not only wireless network names (SSIDs) and information identifying individual computer devices (MAC addresses) while it was out photographing every house for StreetView, but also payload data. The company says this sniffing was accidental. Privacy International's Simon Davies says that no engineer he's spoken to buys this: either the company collected it deliberately or the company's internal management systems are completely broken.
This was the topic of Tuesday's Big Brother Watch event. We actually had a Googler, Sarah Hunter, head of UK public policy, on the premises taking notes (as far as I could discern she did not have a camera mounted on her head, which seems like a missed opportunity), but the court actions in progress against the company meant that she was under strict orders from legal not to say anything much.
You can't really blame her. The list of government authorities investigating Google over the wifi data now includes: 38 US states and the District of Columbia, led by Connecticut; Germany; France; and Australia. Britain? Not so much.
"I find it amazing that Google did it without permission and seemed to get away with it without anyone causing a fuss," said Rob Halfon MP, who took time between votes on Tuesday to deliver a call to action. "There has to be a limit to what these companies do," he said, calling Street View "a privatized version of Big Brother." Halfon has tabled an early day motion on surveillance and the Internet.
There are two separate issues here. The first is Street View itself, which many, many countries have been unhappy about.
I was sympathetic when Google first launched Street View in the US and ran into privacy issues. It was, I thought and think, an innocently geeky kind of mistake to make: a look! This is so COOL! kind of moment. In the flush of excitement, I reasoned, it was probably easy to lose sight of the fact that people might object to having their living room windows peered into in a drive-by shoot and the resulting images posted online. Who would stop to ask the opinions of the inept, confused user of typical geek contempt, "my mother"?
By the time Street View arrived in Europe, however, there was no excuse. That the product's launch has sparked public anger in every country with every launch, along with other controversial actions (think Google Books), suggests that the company's standard MO is that of the teenager who deliberately avoids her parents' permission because she knows it will be denied.
It is, I think, reasonable to argue, as Google does, that the company is taking pictures of public areas, something that is not illegal in the US although it has various restrictions in other places. The keys, I think, are first of all the scale of the operation, and second the public display part of the equation, an element that is restricted in some European countries. As Halfon said, "Only big companies have the financial muscle to do this kind of mapping."
The second issue, the wifi data, is much more clear-cut. It seems unquestionable that accidental or not – and in fact we would not know the company had sniffed this data if it hadn't told us itself – laws have been broken in a number of countries. In the UK, it seems likely that the action was illegal under the Regulation of Investigatory Powers Act (2000) and the Computer Misuse Act would apply.
Google's founders and CEO, Sergey Brin, Larry Page, and Eric Schmidt, seem to take the view that no harm, no foul.
But that's not the point, which is why Privacy International, having been told the Information Commissioner was not interested in investigating, went to the Metropolitan Police.
"There has to be a point where Google is brought to account because of its systemic failure," he said. "If all the criminal investigation does is to sensitise Google, then internally there may be some evolution."
The key, however, for the UK, is the unwillingness of the Information Commissioner to get involved. First, the ICO declined to restrict Street View. Then it refused to investigate the wifi issue and wanted the data destroyed, an action PI argued would mean destroying the evidence needed for a forensic investigation.
It was this failure that Davies and Alex Deane, director of Big Brother Watch, picked on.
"I find it peculiar that the British ICO was so reluctant to investigate Google when so many other ICOs were willing," Deane said. "The ICO was asleep on the job."
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