GBS and Students: Jason Schultz of UC Berkeley Examines Privacy

By Jason Schultz, freeculture.org

In this guest post, Jason Schultz, Assistant Clinical Professor of Law and Director of the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law, examines the academic implications of poor privacy.

I’ve never seen my students more depressed than the moment they walk out of the campus bookstore. Instead of inspiration and glee, they often look like Quasimoto, the famous hunchback — dragging their bags full of thick clunky tomes behind them and bemoaning the huge hit they just took in their wallets. This is especially true today, as monumental budget cuts have driven up tuition at state universities like UC Berkeley to unprecedented heights. The cost of a college education has never been more daunting or its debt more long-lasting.

Enter Google Book Search (GBS), the half-decade-old scanning project by the popular search company in Mountain View. With GBS, the promise of affordable modern access to textbooks is at your fingertips. For example, if an academic publisher is part of Google’s Publisher Program, a large or small portion of the book may already be available depending on the publisher’s permissions. However, for other books that are still under copyright, Google will only display snippets — small 8-12 line “samples” of text that highlight what the viewer is searching for. Still, if you find a snippet that sounds good, you can often order the book via library or bookstore through a link on the side of the page.

Despite the limited size of these snippets, Google has been involved in a copyright lawsuit over its Book Search project that has now come to a head with a gigantic and important Settlement Agreement. The original lawsuit mostly concerned Google’s scanning, indexing, and snippet displays and whether or not those were copyright infringements or “fair use” of the books. The Settlement, however, covers many, many issues — open access, disability and civil rights, competition issues, metadata accuracy, and fair use just to name a few — too many to describe in a single blog post. However, I do want to highlight one of the key issues — privacy. You can check out other issues here.

When it comes to book privacy, it is important to think about it in the context of what many academics and activists call The Chilling Effect. Think about it. If you go to a library or a book store most days, you can walk around and browse fairly anonymously. If you decide you want to take a sneak peak at the somewhat embarrassing new Twilight novel, most people will never know. Or say you have a more serious concern, such as HIV or domestic violence. The privacy in physical libraries allows you to explore and understand important issues, either personally or for research and educational purposes. This privacy even extends to what you buy or check out — almost all libraries and bookstores protect these records from access by third parties as vehemently as possible. (For example, the American Library Association Code of Ethics specifically commits every librarian to protecting patron privacy.).

So the question for Google, and for the Settlement, is what kind of privacy protections will GBS offer? Well, the Settlement Agreement doesn’t say. It’s entirely silent on the issue of reader privacy. To their credit, Google has taken this concern quite seriously outside the Settlement, even going so far as to post a proposed Privacy Policy and make several comments on their blog. Yet concerns remain. For instance, despite Google’s assurances that they “take our privacy commitments to our users very seriously[,]” there are open questions about how much information they will collect on readers who use GBS, whether that information will be used in conjunction with other Google Services (such as its advertising services), how long they will keep the information, and under what circumstances they will disclose it to third parties, such as the government or those involved in civil lawsuits. These concerns are very real, as we have seen examples of subpoenas for book information in the past here, here, and here.

Moreover, there is also a concern about Google changing its mind in the future. If the settlement is approved (the Judge in the case will hold a hearing on October 7, 2009 to consider the matter), there is nothing that prevents Google from deciding at some future date to offer less privacy to readers. Locking Google into privacy as part of the Settlement ensures that readers are protected now and in the future. (I should note that I helped file a brief asking the Judge to do just that on behalf on a group of authors and publishers who share this concern.)

In sum, GBS is an amazing new opportunity to access information from books. There is no doubt about that. And the Settlement provides unprecedented additional opportunities for students to read. However, it is important to keep in mind the trade-offs that GBS and the Settlement offer and to make sure that the balance is positive before we whole-heartedly endorse this dramatic change in the future of the way we read, learn, and share information. For every student reading this, it is your future that is at stake, so pay attention. This is one test that may well be part of your permanent record for years to come.

– Jason Schultz