Naturally, the idea that Google wrote code to evade Safari’s privacy settings has not sat well with many. The Electronic Freedom Frontier dubbed Google’s actions “just as paternalistic as ad networks” and posited that Google needed a new approach to privacy to “restore [its] users’ trust.” Several Congressmen have asked the FTC to investigate whether these actions violate the Google Buzz settlement, which prohibits Google from making “future privacy misrepresentations.” One user has filed a class action suit against Google, claiming violation of federal wiretapping laws and other computer-related statutes.

Tensions often run high when privacy is threatened. Nevertheless, amidst the outcry, it is important to identify the contours of the threat and know what exactly it is we are upset about.

Circumvention Explained

Apple Inc.’s Safari is the only web browser that blocks third-party cookies by default. Cookies are essentially helper-files that websites commonly use to store things like user preferences and session information (for example, the state of a shopping cart). When a site contains third-party content (for example, a banner advertisement on your favorite news site), that third-party (in our example, the advertising company) can write its own cookie. Third-party advertisers commonly use this feature to record where and for whom  their advertisements have been displayed, allowing them to build a history of the sites an individual user visits.

Last September, in an effort to compete with Facebook’s “like” functionality, Google added a “+1” button to certain Google ads, which Google+ users could click on to indicate they “liked” those ads. However, because Google has set up its services such that Google+ and Google Ads reside on different domains, interfacing between the two required the use of third-party cookies. Because Safari blocks these by default, Google faced the prospect that most Safari users – a sizeable user base – would not be able to use this new feature.

To address this problem, Google exploited a known exception to Safari’s no third-party cookie policy. Safari allows third-party cookies when a user submits an HTML form, so Google created an invisible form, never seen by the user, which it submitted any time the user clicked “+1.” This triggered Safari’s form exception, allowing the creation of third-party cookies by Google Ads. The Stanford study showed that, in practice, Google used this backdoor method to create cookies that not only enabled the  “+1 Ads” functionality, but also set up the general Google Ads tracking cookie, which monitors the browsing behavior of users going forward. Google stated that they “didn’t anticipate that this [(setting up the general Google Ads tracking cookie)] would happen” and that they have “now started removing these advertising cookies from Safari browsers.”

So We Are Fighting For?

It’s true the technical facts aren’t flattering for Google: its code uses an invisible form to emulate Little Red Riding Hood and gain access to Grandma’s house, exposing the user to whatever tracking Google Ads decides to subject her to.  It’s true that Google’s primary motivation was enabling the “+1” feature for Safari users, but can we really say the end justifies the means in this case?

Still, this begs the question: what is it about Google’s actions that render them so troubling? Is it the fact that Google can track a user’s browser history? This seems unlikely. Google already tracks search history and processes electronic mail information in Gmail – how much more of an invasion can ad tracking be? Moreover, this backdoor is not triggered until a user actually clicks on “+1” – arguably this surveillance involves some kind of consent, albeit uninformed in most cases. Even if we can’t call this consent, enabling tracking involves some affirmative act by the user, and avoiding this is much easier than with search or Gmail.

If, then, it’s not the tracking itself that is particularly disquieting, perhaps the issue goes to some more fundamental idea of respect. By circumventing Safari’s privacy settings to enable the “+1 Ads” feature, one could say that Google ignored the express desires of its users, elevating its own commercial interests over the user’s personal privacy interests. This kind of disregard may be particularly troubling given the relative bargaining power that an individual consumer has against a monolith like Google.  At the same time, however, it may be hard to say that Google was ignoring express interests – blocking third-party cookies is Safari default behavior that most users are not aware of. Moreover, as one blog points out, Safari’s policy may just be a strategic move by Apple to curb the information its competitors can glean from its customers. Viewed in this light, Google’s actions could be understood as commonplace competitive behavior rather than neglect towards individual privacy concerns.

In this case, prudential arguments may bolster the respect rationale. Even if Safari’s default settings were not actual expressions of most users’ real desires, they nonetheless provide the interface through which these preferences can be expressed. Much like a court artificially thinks about Congress as a unified body with “wishes” and “intentions,” it makes sense for Google to treat browser preferences as a real expression of user preferences. Otherwise, it seems unclear what forum users have left. If browser settings are indeed an expression of real user preferences, then, slippery slope arguments counsel against tolerance of any disregard for them. If Google can violate privacy preferences in this area, what is to stop violations in other areas? And, if Google can do it, why can’t Apple or Microsoft do it too?

Looking Ahead

Clearly, slopes are not always slippery and it is possible to draw lines. Context is also useful – why privacy was breached, the extent of the harm caused by the breach, and the basis under which we deem that harm problematic should all be considered in determining whether that breach should be tolerated. In the case of Google, much uncertainty remains in at least two of these areas – nevertheless, consumers, policymakers, and Google executives alike should think critically about these questions in developing rules and recourse available for internet privacy violations.

The next status conference for AT&T’s embattled T-Mobile merger proposal has been postponed until December 9, due to a scheduling conflict. AT&T and Deutsche Telecom, parent company of T-Mobile, have withdrawn their FCC applications after FCC Chairman, Julius Genachowski, expressed strong doubts that the $39 billion deal would serve the public interest, citing instead the likelihood of job losses and stifled competition.

HTC’s purchase of S3 Graphics Co. may not be as fruitful as originally anticipated. HTC made the $300 acquisition in hopes that Apple would have to license graphics technology or risk patent litigation, but the U.S. International Trade Commission declared last week that Apple’s Macs and iPhones did not infringe on two S3 patents. S3 and HTC still have other outstanding patent disputes with Apple.

Onlookers are turning a critical eye on Zynga as the company gears up for its IPO. Reports have surfaced about the hard-nosed culture of the startup, which has grown to 2,200 employees since its inception in January 2007 and produced social gaming blockbusters such as FarmVille and Words with Friends. In the wake of Groupon’s falling share price, others are concerned about the strength of Zynga’s business model, which requires ongoing development and large marketing budgets to stave off the user boredom.

ShopCity, a website that helps local businesses sell products, has filed a complaint and added to Google’s antitrust worries. ShopCity alleges that the search giant favors its own competing service, Google Places, and pushes ShopCity listings onto later results pages that few web surfers ever check.

Opposition to the proposed Stop Online Piracy Act continues to grow, with more than one million emails and 87,000 phone calls flooding Congress to date. If passed, SOPA would enable the Department of Justice and private rights holders to block access to sites accused of hosting infringing content.

• Sprint is urging the FCC to quickly hold hearings to rule on whether the transfer of spectrum licenses from T-Mobile to AT&T serves the public interest. AT&T’s proposed $39 billion acquisition of T-Mobile is currently under review by the FCC after the US Justice Department sued to block the proposal.

• Senators Blumenthal (CT) and Franken (MN) introduced a bill on Tuesday that would prohibit wireless companies from having contract clauses that require consumers to use binding arbitration rather than suing in the case of a contract dispute.

• On Wednesday, members of the House reviewed the FTC’s recommendations to the Children’s Online Private Protection. The proposed changes would require greater permission from parents of children under the age of 13 before information could be collected from them on the Web.

• Also on Wednesday, Senator Coons (DE) and Kohl (WI) proposed amendments to the pending Currency Exchange Rate Oversight Reform Act of 2011. The amendments would allow private federal civil actions for trade secret infringement and would allow Customs & Border Patrol to share information on suspected counterfeiters with US rights holders.

• Samsung wants courts in France and Italy to prohibit Apple’s iPhone 4S, claiming that the iPhone infringed two of its patents. Samsung and Apple are currently in around 20 patent infringement legal disputes.

• AstraZeneca returned to court this week to defend its US patent on Crestor, a multibillion-dollar cholesterol drug, against generic drug makers who are appealing a decision from the US District Court in Delaware. In June 2010, the court ruled that generic firms failed to prove the patent was invalid because it was obvious.

• The FCC has filed its finalized net neutrality rules, set to take effect on November 20. The rules will almost certainly face legal challenges from Verizon and MetroPCS over the extent of the FCC’s jurisdiction.
• David Ignatius writes on legal uncertainty and difficult questions facing the future “rules of war” for drone strikes. The debate has gotten fresh attention over last week’s report that the Obama administration’s legal team is split on the extent of our ability to use lethal force in countries like Yemen and Somalia.
• In contrast to Sprint’s approach to AT&T’s proposed acquisition of T-Mobile, Verizon’s CEO has stepped up and defended the deal as a necessary outcome – “like gravity”.
• Samsung is seeking to ban iPhone 5 sales in South Korea for violating Samsung’s wireless technology related patents. The move comes on the heels of Apple’s latest success in banning Samsung’s Galaxy Tab 10.1 from Germany and an escalating international patent battle between the two tech giants.
• With an eye toward stock market volatility, the troubled GroupOn IPO is back on track with a late October-early November goal for going public.
• Three Boston University researchers have estimated that patent litigation by non-practicing entities, aka “patent trolls”, have cost publicly-traded defendants half a trillion dollars since 1990.

• Authorities in San Mateo, California, contemplate filing criminal charges in connection with the sale of an Apple prototype (of a new iPhone), lost by and possibly stolen from an Apple software engineer and bought for $5,000 by the website Gizmodo.com, the New York Times reports.

• From the San Francisco Chronicle: citing a desire to help fight censorship, Google has launched a tool that discloses requests the company receives from governments for content removal and user data.

• India’s new copyright proposals, which include both fines and jail time for offenders, are still not strict enough for the RIAA, MPAA, and other organizations that lobby for greater intellectual property enforcement, Ars Technica explains.

• From CNET, a summary of the recent Supreme Court decision declaring unconstitutional a law banning Internet videos of animal cruelty, while leaving open the possibility that a narrower law would be permissible.

• A new study funded by net neutrality opponents claims that the FCC’s proposed net neutrality rules would cost the telecommunications industry over 340,000 jobs in the next ten years, PC World reports.

• PatentlyO notes that the Supreme Court has decided to hear a case on international copyright exhaustion, and gives a summary of the case.

• Also from PatentlyO, links to videos of patent attorney Kevin Noonan defending genetic patents on 60 Minutes and the Colbert Report.

• The Southern District of New York‘s decision in Association for Molecular Pathology and ACLU v. USPTO and Myriad (the “gene patents case”) handed down last Monday, has generated a lot of commentary this week. Here’s a selection: reports from Wired and On the Edges of Science and Law; IP Watchdog describes the ruling as “inane”; Patent Docs gives more detail on the patents at issue; Patently O thinks the Federal Circuit is likely to reverse the decision; and Holman’s Biotech IP Blog takes the investor’s perspective.

• British science writer Simon Singh (of Fermat’s Last Theorem, The Code Book and Big Bang fame) wins libel case brought against him by the British Chiropractic Association, from The Guardian.

• Jonathan Zittrain’s The Future of the Internet and How to Stop It comments on the iPhone developer license agreement, disclosed through a Freedom of Information Act request.

• From OutLaw, Google, Microsoft, eBay et al call for U.S. privacy law update.

• Salt Lake City jury rejects “copyright troll’s” claim to Unix - Wired reports.

• The European and FCC antitrust complaints against Google are not about Microsoft, opines The Register.

• US criticizes Australian internet filtering plan, from E-Commerce Times.

• The Department of State’s annual Human Rights Report turns the spotlight on internet freedom in China and Iran, from ZDNet Government.

• The US District Court in Delaware stays the patent litigations between Apple and Nokia, pending decisions by the International Trade Commission, says The Register.

• A California appeals court rules that cyberbullying threats are not protected free speech, reports Wired.

• Also from Wired, the Supreme Court agrees to review a Ninth Circuit decision on privacy rights in the context of background checks on government workers.

• The FCC announces that it will recommend the sale of 500 megahertz of spectrum to meet the needs of mobile broadband users, from the Washington Post.

• Programmers in trouble over financial misdeeds: two programmers who developed code for Madoff are charged with fraud (The New York Times, The Register) and the Securities Exchange Commission files a complaint against a one-man Russian investment company for hacking into online portfolios to “pump and dump” stocks (Switched, Wired).

• From E-Commerce Times: TiVo wins its long running patent infringement case against digital video recorder rivals.

• Spicy IP reports that Brazil seems set to invoke WTO intellectual property cross-retaliation provisions for the first time, against the US.

• The European Parliament threatens to bring a legal challenge against the European Commission if it fails to disclose details of the Anti-Counterfeiting Trade Agreement (ACTA), writes Outlaw (see our post on the controversial treaty here).

• Also from Outlaw: Net Neutrality in the UK: Ofcom to probe broadband providers’ management of web traffic.

• Out-Law reports on a US District Court for the Northern District of California case that clarifies how damages for groundless claims of copyright infringement should be determined.

• Apple is suing HTC over infringement of its user interface patents, but it’s really Google it’s after, says IP Watchdog.

• RealNetworks drops its appeal against a ruling declaring that its DVD-copying software violated the DMCA – Wired reports.

• Is it the car or the driver’s fault? Toyota recall casts doubts on driver’s conviction, says Autoblog.

• BusinessWeek reports that Google is pushing for the U.S. to take a WTO action against China over internet censorship (and see our recent post on the subject here).

• Are you liable if you forward a defamatory e-mail with introductory comments? Eric Goldman reports on a recent California appeals case.

• The E-Commerce Times wonders whether Microsoft is behind Google’s recent antitrust troubles.

• Netflix is being sued for its deal to delay the availability of Warner Brothers DVDs, reports the New York Daily News.

• Out-Law opines that the convictions of Google executives in Italy is not just about Italian law – the problem is with the EU directives Italy implements (see our post on the case here).

• Is that really Yao Ming’s Twitter page?  Twitter is testing out a new verified account feature for celebrities.  See our old post on Twitter-squatting here.

Flash, owned and distributed by Adobe, is an extremely popular method to add animation and interactivity to web pages, used by over 85% of top websites.  Anyone who has visited YouTube, Hulu, or the vast majority of media rich websites has enjoyed the benefits of Flash.  Not surprisingly, many iPhone users are already demanding Flash.  Adobe reported that in December 2009 there were seven million attempts to download Flash from iPhones and iPod Touches.

With such a high level of demand, why would Apple refuse to adopt Flash on the iPad, a device well equipped to handle the technical requirements of Flash?  Well known entrepreneur Mark Cuban claims “[t]he reason is obvious. No flash, far less streaming over 3G… Less bandwidth consumed means AT&T can offer a great price on the 3G data service.”  A recent article in the Wall Street Journal offered a different explanation: “Flash would let users freely obtain the kinds of features they can only get now at the Apple App Store.”  In other words, Flash would allow users to watch videos and play games in a world outside of Apple’s control and revenue stream.

As word spread that the iPad would lack Flash, bloggers began to question Apple’s claim that the device would be the “best way to experience the internet.”  Some predict that the iPad’s closely controlled software environment could have a chilling effect on innovation.  Unlike traditional operating systems, the iPad and iPhone operating system forces all software downloads through the App Store, giving Apple significant control over how the devices are used.  Reflecting these concerns, Adobe reacted to Apple’s decision by stating that “[w]e strongly believe the Web should remain an open environment with consistent access to content and applications regardless of your viewing device.”

Normally, one would expect Apple to support Flash due to simple market forces, the argument being that without Flash, fewer people would buy the iPad, thus harming Apple’s profits.  Here, however, Apple is likely more profitable by excluding Flash in order to promote the App Store.  The absurdity of this situation begs the question of whether Apple’s decision is lawful and what might be done to intervene.

Net Neutrality Concerns

Traditionally, net neutrality has been discussed in the context of broadband providers attempting to restrict information exchanged by its networks.  An example would be a cable internet company curbing P2P traffic to save on bandwidth expenses.  Proponents of net neutrality rules argue that legislation or regulation is necessary to stop such limitations.  These rules are generally opposed by telecom providers but supported by consumers and web companies offering high bandwidth music, movies, and games.

Without delving into the merits of the debate, it is sufficient to state that the Obama administration supports net neutrality, prompting the FCC to propose new rules which would expand the scope of net neutrality for both wired and wireless providers.  While still in the rulemaking process, these rules could be codified by the FCC within the next few weeks.

Perhaps the most important new rule would require broadband providers to “treat lawful content, applications, and services in a nondiscriminatory manner.”  This broad provision provides exceptions in order to manage network congestion and prohibit unlawful content.  Under the plain meaning of this rule, Apple’s decision to exclude Flash content in favor of its officially sanctioned apps might very well be prohibited.

Apple may contend that the lack of Flash is a legitimate effort to manage AT&T’s network congestion.   This argument seems weak, however, because Flash requires no more bandwidth than many popular apps, such as the YouTube app and many newly approved voice over 3G apps.  It seems likely that the lack of Flash is really just a way to promote the App Store, making it difficult for Apple to fit this decision within the network management exception.  Even if it were trying to limit network congestion, network neutrality would demand a nondiscriminatory approach, such as offering tiered data plans or prohibiting all high bandwidth functions from the 3G network.

While the FCC has clear authority over wireless networks, it’s not entirely clear that it could mandate software requirements for mobile browsers.  Apple might argue that since it is not a broadband provider, these net neutrality rules should not apply to it.

Still, the FCC seems more than willing to get involved in this arena.  Last fall the FCC inquired into the rejection of the Google Voice app, which caused quite a bit of bad press for Apple.  The inquiry included broad questions about Apple’s method of approving apps.  Given the FCC’s general interest in the app approval process, it is not farfetched for the FCC to inquire about how Apple decides to reject standards in its web browser.

Officially, the FCC’s inquiry into the Google Voice rejection was part of ongoing proceedings into wireless open access and handset exclusivity.  However, it didn’t take a formal FCC ruling for Apple and AT&T to change course and allow voice over 3G apps.  A similar FCC inquiry in this instance might call enough attention to the matter that Apple would relent and decide to allow Flash without the need for formal proceedings.

It will be interesting to see if the FCC decides to get involved in this situation.  Given its recent focus on net neutrality and its willingness to question Apple’s activities, some sort of action in this instance would not be surprising.  Involvement would show that the FCC is serious about making the net a truly open place, even on wireless networks.