The recent Google move to introduce the ultimate SPYWARE while fooling users that they are only "accelerating" their downloads has not done much to change my opinion about them. That's because my opinion about Google was already at a low point, making it difficult to fall any lower.
However, this "web accelerator" is clearly another new level of privacy violation, even if it only affects those who choose to live under the Google searchlights just to get a few downloads done faster.
Therefore, I will take a few minutes to look at whether it might be illegal under current European law.
There are three potential problems.
One is copyright. The service seems to be working, among other things, by using a "prefetch" command. That is, Google is downloading content the user might possibly require next in advance.
This downloading is a reproduction, just as the illegal cache of the whole Web Google is doing is a reproduction.
That means it needs an exception or limitation, since obviously Google has no licenses.
The only exception possible is Article 5 Number 1 a) of the 2001 Information Society Copyright Directive.
That exception requires that the "prefetch" is an "integral and essential part of a technological process whose sole purpose is to enable a transmission in a network between third parties in a network".
The "prefetch" does not enable a transmission in all cases where the user does not choose to actually use the prefetched file. In all those cases, it adds only unnecessary burdens to the whole Internet traffic load. Therefore, it seems to be open to doubt if the exception extends this far.
The next potential problem is data protection. Article 6 paragraph 1 of the 2002 Electronic Communications Data Protection Directive says:
"1. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication without prejudice to paragraphs 2, 3 and 5 of this Article and Article 15(1)."
Since Google "logs page requests" and does not seem to delete them when the communication is finished, all that keeps them from violating Article 6 is the anonymity of the user. However, since the pages logged may contain personally identifiable information, that defense is rather weak in most cases.
The third potential problem is that of liability for illegal content.
Under Article 13 of the 2000 Electronic Commerce Directive, an exception for liability is granted for "Caching".
However, in this case the exception is clearly restricted to cases where the cache is for the purpose of making more efficient the information's onward transmission to other recipients of the service upon their request. With "prefetched" pages there is no user request.
So if any of the billions of prefetched pages on some user's computer turns out to be illegal in that particular country, there is nothing to stop Google's liability for delivering that particular content.
Summing up, there seem to be some potential legal problems with the "web accelerator" service under European law, especially regarding the "prefetched" pages.
However, the moral repulsiveness of turning the searchlights on your users, as opposed to having them turned on the web content, depends in no way on the finer legal points mentioned above.
If you have a comment or trackback, please go to k.lenz.name/discuss.
Posted by Karl-Friedrich Lenz at May 8, 2005 01:34 PM