could be headed for a court confrontation with the U.S. attorney general — and for the mother of all privacy storms.
The search goliath has until Monday, February 6 to respond to the AG’s motion to compel it to release aggregated data about search queries and a random sampling of 1 million URLs from its index. A hearing on the motion is set for February 27.
But privacy experts say the subpoenas dropped on the top four search engines — Yahoo, Google, MSN and AOL — may be clouds on the horizon that herald unprecedented intrusion into consumer privacy.
Personalization has been the Next Big Thing for Web publishers since the dawn of the commercial Web itself. Now, just when it’s starting to get useful to marketers and users, it may be a little too useful to the Feds.
The U.S. Attorney General’s office asked the search providers for lists of URLS in their indexes and lists of queries and keywords. After months of haggling, all but Google delivered information that they said didn’t compromise users’ privacy or contain personally identifiable information. (Google faces a hearing in federal court to decide whether it should be compelled to cough up the information.)
Kevin Bankston, an attorney with the Electronic Freedom Foundation (EFF), said: “The real issue here is, if [search engines] didn’t keep this stuff, no one could subpoena it. The public needs to question their policies.”
In 1999, a startup called Engage launched AudienceNet, a profile-driven advertising network. AudienceNet’s pitch was that advertisers could target Web site visitors based on anonymous profiles created from their online behavior.
The concept was ahead of its time, said Ellen Siminoff, CEO of Efficient Frontier, a provider of analytics tools for search engine marketing, but it’s still useful.
“A lot of these demographic behavioral technologies are interesting. If, at the end of the day, that data gets you to a better user experience or more targeted marketing, the more power to you — as long as people have notice and the option to decline,” Siminoff said.
But there have been plenty of privacy snags in Web publishers’ personalization efforts. In 2002, Yahoo got on the wrong side of New York Attorney General Elliot Spitzer, when it changed its account registration options from a single yes/no to receiving marketing messages to 13 separate categories for users to select. When it made the change, it automatically opted in registered users for all13 categories.
Yahoo ultimately paid $75,000 to cover the cost of the investigation and agreed not to telemarket to customers who had opted out of marketing before the policy change.
Things are better now, search companies say.
“AOL gives consumers a tremendous amount of options on what information they want collected,” said AOL spokesman Andrew Weinstein. Every time they do a search, he said, AOL users can click on a button to see their saved searches. They can delete them individually or en masse, and they can turn that function off completely.
Although AOL Search is powered by Google, AOL layers additional functionality on top of it, including the saved search feature.
Neither Google nor Yahoo responded to requests for comment on how their information gathering practices might be influenced by the subpoenas.
But Siminoff said that it’s impractical for these companies to store much information on individuals.
“If search engines could tie together all that demographic information about a user, they’d be thrilled, because they could sell ads against it. But they’re not doing that today,” Siminoff said.
However, MSN says its new adCenter advertising platform will aggregate data on users gained from across MSN to better target ads. AdCenter, a competitor to Yahoo Search Marketing and Google AdWords, is in limited beta in the United States, with plans for it to begin delivering the bulk of ads seen on MSN this spring. MSN didn’t respond to a request for comment about whether adCenter’s aggregation of user behavior data might be interesting to the Feds.
E-commerce on ice
The EFF said the AG’s fishing expedition could scare people into limiting their searches. That makes it a free speech issue in their book. The EFF, along with the American Civil Liberties Union, brought the suit to block the Child Online Protection Act (COPA); the attorney general’s subpoena said it wanted the information from search providers to get a sense of how much pornography was on the Internet and how many people were looking for it.
Said the EFF’s Bankston: “The fact that they got hold of a weeks’ worth of queries — even if they don’t contain personally identifiable information — is going to chill how people use search engines. A lot of people will be concerned about the privacy of their searches from now on.”
Steve Mansfield, cofounder of iLOR, went further. The commercial Web runs on keyword advertising distributed by the search engines, he pointed out. (According to Jupiter Research, which is owned by the same corporation that owns internetnews.com, advertisers spent $4.2 billion on search advertising in 2005.)
ILOR recently launched PreFound, a “social search engine” that relies on users to find, tag and upload useful or interesting links. Mansfield pointed out that the major differentiation of the Web from other media is its interactivity. “If you threaten that interaction, or people feel threatened, it’s a negative for all of Internet commerce,” he said. “If it threatens interaction, it threatens advertising — and that threatens Web commerce.”
Slipping down the slope
Industry experts said that the government has likely subpoenaed the search engines before, asking for personally identifiable information for use in criminal cases — and gotten the information it asked for. But they saw this round of demands as especially troubling.
Andy Serwin, an attorney with the law firm of Foley & Lardner, said the government might take the aggregated data and learn how to find patterns that could help them identify which searches might be related to illegal activity.
“People need to understand that data is being gathered,” Serwin added. “If anyone thinks they truly are anonymous on the Internet, they’re either naïve or stupid. If you use the Internet to search for certain types of things, you’ve got to know that someone can trace it back to you.”
“Google and all the other search engines do log all this stuff, and they log it in ways that, in many or most cases, could be linked to you individually, and especially if you are logged into your account with them,” Bankston said. “The fact that this subpoena isn’t looking for personally identifiable information doesn’t mean the next one won’t.”