Zimmer, M. (2012). The ethical (re)design of the Google Books project. In iConference ’12 Proceedings of the 2012 iConference, 363-369. DOI: 10.1145/2132176.2132223

Today, the Google Books project is at a relative standstill — lawsuits against the project remain outstanding as the courts rejected a proposed settlement agreement. The failure of the original vision for the Google Books project to become fully realized presents us with a unique opportunity to ensure that whatever final form Google Books will take in the future, it is designed to support the values respected within the domain of information ethics. This paper will proposed an ethical re-design of the Google Books project, focusing on three core ethical values of primary interest to librarian and information professionals: privacy, intellectual freedom, and public access to information. Advocating for these values in the next iteration of the mass digitization service can help ensure that the informational norms of the library are embraced and upheld.

Section 3.7(e) Google’s Exclusion of Books

Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons. However, Google’s right to exclude Books for editorial reasons (i.e., not for quality, user experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google.  Accordingly, because Plaintiffs, Google and the libraries all value the principle of freedom of expression, and agree that this principle is an important part of GBS and other Google Products and Services, Google agrees to notify the Registry of any such exclusion of a Book for editorial reasons and of any information Google has that is pertinent to the Registry’s use of such Book other than Confidential Information of Google and other than information that Google received from a third party under an obligation of confidentiality.

Google Book Search is a massive undertaking.  Its goal is to provide unprecedented access to digital copies of all kinds of literature – a vast library of material the likes of which has never before been assembled in a single resource.  However, the project has been criticized, not for what it is including, but for what it isn’t.  Because Google Book Search has the potential to be such a widely used resource, it has the responsibility to reflect an equally diverse range of opinions and perspectives in its collection.  The editorial decision to not include a book in this project could be considered censorship and sufficient justification for such exclusion should be required of Google.  Censorship of this kind could come in two forms – first in the decision to withhold a digitized book from display in the database or, second, by choosing not to digitize a book in the first place.  The first form has already been discussed in Michael Zimmer’s blog, so the second will be the focus of this piece.

The Google Book Search Amended Settlement Agreement carves out space allowing Google to exclude certain books from “Display Uses” for both editorial and non-editorial reasons.  Alexander Macgillivray, former Google employee and head of the legal team spearheading the settlement, has gone on record assuring the public that this exception merely reserves Google’s right to exclude, but that Google has “ABSOLUTELY NO PLANS to remove any books for editorial reasons” (emphasis in original).  Despite this assurance, Section 3.7(e) implies that if, for any reason, Google does exercise this right then notice will be provided to a registry maintained by the Publisher’s Guild.  What Mr. Macgillivray and Section 3.7 do not address is the ability of Google and participating libraries to editorially exclude books from the digitization process in the first place.  Specifically, Section 3.7 discusses the exclusion of books from “Display Uses” which are defined within the Amended Settlement Agreement as “Snippet Display, Front Matter Display, Access Uses and Preview Uses” (Article 1, Section 1.52 at p. 8).  Each of these terms is further defined as display and use of material after it has already been digitized.  Again, there is no mention of the possibility that either Google or participating libraries may withhold certain books from the initial scanning process for editorial reasons.  Additionally, no requirement exists for the provision of notice to the registry for such exclusion of books from digitization.

It is conceivable that books may be excluded from the scanning process for completely legitimate reasons.  Perhaps a book is too fragile or irreplaceable to risk scanning it.  Perhaps the print is too faint or pages are missing.  These are all reasonable, non-editorial justifications for omitting a book from the digitization process.  However, it is equally conceivable that a book may not be scanned because it is too controversial, too outdated, or simply too unpopular to merit digitization.  One could easily imagine a librarian or Google scanning technician setting aside a copy of Little Black Sambo or The Anarchist’s Cookbook in order to preemptively avoid controversy.  To date there is no evidence that these books have been omitted from the scanning process, the point is that such exclusion based on the mere anticipation of ruffled feathers amounts to a priori censorship.  Without a reporting requirement similar to that included in Section 3.7, there is no transparency in the process.

Although this possibility may seem somewhat alarmist and is certainly hypothetical, a close reading of the Settlement Agreement should give one pause.  For instance, the Agreement clearly allows Google to pick and choose books from a library’s collection.  Even the definition of “Collection” within the agreement implies a certain amount of cherry-picking: “’Collection’ means the Books held by a Fully Participating Library or a Cooperating Library that have been Digitized or are targeted for Digitization pursuant to a Digitization Agreement between Google and such Fully Participating Library or such Cooperating Library, which Books may be some or all of such Fully Participating Library’s or such Cooperating Library’s holdings” (Article 1, Section 1.30 at p. 6, emphasis added).  Because these Digitization Agreements are not part of the public record, it remains unclear why only “some” of a participating library’s collection is being scanned and how such decisions are made.

More insidiously, in the final analysis Google Book Search is primarily a commercial enterprise.  Therefore, it isn’t unreasonable to assume that controversial, outdated, or unpopular material may be preemptively excluded from the scanning process because the potential market for such works is small or nonexistent.  Such exclusion may also shield Google from potentially costly litigation.  The alternative argument could certainly be made that Google has historically been inclusive of unpopular speech in its search index and that, “Nearly all known instances of the removal of content from Google’s index were, in one way or another, legally required” (see Zimmer blog post).  Mr. Macgillivray’s public statements also seem to indicate that this policy will extend to Google Book Search and that “Google does not plan to omit any books from the service, just as we have not omitted any books from our scanning based on their content or copyright status”.  While this promise and general policy of inclusion are reassuring, past practice is in no way a guarantee of future behavior.  Additionally, the inclusion of a website in Google’s search index costs almost nothing.  Google’s massive expenditure to refine the scanning process and the considerable per unit expense of digitizing a book may affect the calculus of inclusion.  Again, without some sort of public reporting requirements, we have no way of knowing if books are being excluded, why they’re being excluded, and how those decisions are being made.

If Google’s mission is “to organize the world’s information and make it universally accessible and useful” and if Google Book Search aspires to that goal, then the threshold for not digitizing a book should be quite high indeed.  Google and the Amended Settlement Agreement have created what amounts to a de facto monopoly – they are the sole online provider of these books.  No one else has the resources, technology, or access to material that Google does. Therefore, the threshold for exclusion should certainly be higher than commercial considerations of a book’s potential value in the marketplace or fear of controversy.  If, for some reason, a user is not able to access the totality of material at Google’s disposal then some justification should be required.  Public notification of these justifications should also be a necessary component for transparency – anything less is simply censorship.

In July 2009, Google posted a brief FAQ regarding privacy and Book Search, promising that the services provided under the Settlement will be bound by its general Privacy Policy, that it will only share aggregate usage data with the Book Rights Registry, that Google Accounts will not be required to access the services (although there will be some access limits for those who don’t login).

To most, including myself, this FAQ failed to sufficiently quell concerns over GBS’s impact on intellectual privacy and the freedom to read anonymously.

At the “Google Books Settlement and the Future of Information Access” conference organized by the UC-Berkeley Information School, I joined other advocates in calling on Google to be more forthright about the privacy concerns — and need for more specific protections — related to the GBS settlement and proposed infrastructure for accessing digital books. Google has insisted, however, than a more detailed privacy policy was impossible to construct since the actual technology has not yet been developed. Google’s Privacy Counsel, Jane Horvath, noted this apparent obstacle in an August 31, 2009 letter to the FTC:

Because the settlement agreement has not yet been approved by the court, and the services authorized by the agreement have not been built or even designed yet, it is not possible to draft a final privacy policy that covers details of the settlement’s anticipated services and features.

Sharing the concern of privacy advocates, the FTC refused to fully accept Google’s deferment, and urged Google to publish a privacy policy outlining Google’s specific privacy commitments for the Book Search product:

[I]t is important for Google to develop a new privacy policy, specific to Google Books, that will apply to the current product, set forth commitments for future related services and features, and preserve commitments made in the existing privacy policy.

As Google develops its new privacy policy, we urge Google to focus in particular on appropriately limiting secondary uses of data collected through Google Books, including uses that would be contrary to reasonable consumer expectations.

So, upon receiving this demand from the FTC, Google did what it has previously said was impossible: it published a Privacy Policy for Google Books.

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In announcing the publication of this privacy policy, Google notes that “Google Books has always been covered by the general Privacy Policy for all of Google’s services”, and in the policy itself it is stated that “Any publicly available product authorized by the settlement will have a privacy policy comparable to policies you can see in our Privacy Center today for other Google products.” While this sounds comforting, it is the very fact that Google intends to treat Book Search records with the same (and in many ways, limited) privacy protections as its other products that causes much of the concern.

As I noted in my remarks at the Berkeley event, there are particular expectations of privacy when it comes to seeking information in a library setting. The context of the library brings with it specific norms of information flow regarding patron activity, including a professional commitment to patron privacy. But the insertion of Google into this context raises an alarm, and merely promising that the same privacy standards of Web searching will apply is insufficient. Here’s why:

Searching for information on the World Wide Web was a new experience for most everyone. It was a new frontier of information-seeking, which developed its own business model, its own technical infrastructure, and its own technical standards and best practices, ones that rely heavily on the tracking and capturing of user data. Google has gone to some lengths to explain how & why it must track and collect user data for Web searches. Many people accept this as the norm for Web searchers: in order to benefit from what companies like Google have created, we need to acquiesce to this kind of tracking of our search activity. Yes, Google promises not to give to other people except in specific circumstances, but in general, people know and accept that Google can see what they’re searching for, and they keep and use that data for a variety of purposes. For most, that’s just the way the Web works.

But the context of the library is altogether different. In the library, users intellectual activities are protected by decades of established norms and practices intended to preserve patron privacy and confidentiality, most stemming from the ALA’s Library Bill of Rights and related interpretations. As a matter of professional ethics, most libraries protect patron privacy by engaging in limited tracking of user activities, having short-term data retention policies (many libraries actually delete the record that you ever borrowed a book once it is returned), and generally enable the anonymous browsing of materials (you can walk into a public library, read all day, and walk out, and there is no systematic method of tracking who you are or what you’ve read). These are the norms of the library.

With the proposed GBS settlement, we are talking about the de facto transfer of library practices (reading a book) to a Web-based infrastructure powered by Google (searching the Web). It will be reasonable to expect the same informational norms that exist in the library settings – limited tracking, short-term data retention, possibilities of anonymous browsing – to translate into the proposed digital system for browsing books. If these are the expected norms of information flow, we must ensure they are respected by any system designed for browsing digitized books. In short, the system must be conceived as an extension of the library – with its informational norms in tow – and not an extension of Google, burdened with its standard practice of gathering user information.

Unfortunately, the fact that Google repeats that Google Books will follow the same privacy policy of general Web searching means the norms of data collection of the Web will likely prevail over the norms of the library. All the reasons we are concerned about the privacy of our Web searches are now amplified with the possible emergence of a large-scale infrastructure to track and monitor book searches. This is part of why most advocates where disappointed with the privacy policy released by Google.

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That said, there is one hopeful difference in the privacy commitment laid out by Google. Google notes the existence of special protections, in some jurisdictions, protecting the the privacy of people’s activities in libraries:

Special legal privacy protections for users may apply in cases where law enforcement or civil litigants ask Google for information about what books an individual user has looked at. Some jurisdictions have special “books laws” saying that this information is not available unless the person asking for it meets a special, high standard – such as proving to a court that there is a compelling need for the information, and that this need outweighs the reader’s interest in reading anonymously under the United States First Amendment or other applicable laws.

This is an important recognition of how people’s actions in the library setting often deserve special protections (something I wish Google would recognize with all information-seeking activities). In response Google promises that (emphasis added): “Where these “books laws” exist and apply to Google Books, we will raise them.” Quite honestly, I don’t know what Google means by stating it will “raise them”. The most basic reading of this statement means that if the law exists, then Google will bring that law to the Court’s attention (as if the Court wouldn’t have already addressed it?). That’s not the same as a promise to require warrants, challenge subpoenas, or otherwise require compliance with these laws.

Perhaps I’m wordsmithing, but this is such an important issue, Google should be more precise in their intentions (which was the whole point of demanding this policy in the first place). Further, this seems to be yet another case where Google is thinking like lawyers about privacy, suggesting that “there are some laws that might protect readers’ privacy, and we’ll “raise them” when appropriate.” But it seems to be only the existence of such laws that prompts Google’s additional attention to the uniqueness of intellectual privacy.

What Google needs to do is think like a librarian, and do whatever it takes to ensure readers’ privacy and confidentiality is protected, regardless of what the law requires.

More recently, Samuelson has questioned whether the Authors Guild and AAP fairly represented the interests of all authors and publishers during the negotiations that led up to the settlement agreement. She notes:

The Authors Guild has about 8000 members. OCLC has estimated that there are 22 million authors of books published in the U.S. since 1923 (the year before which books can be presumed to be in the public domain).

Along with this disparity is the fact that not all authors write and publish with the same motivations. Compare academic authors, who often write with the hopes of spreading knowledge (with little to no direct compensation), versus many traditional authors who hope to provide an escape or entertainment for profit (both worthy goals, btw). As Samuelson noted on NPR earlier this week:

University of California law professor Pamela Samuelson says the Authors Guild doesn’t represent the interests of academic authors, either. Samuelson doesn’t want money for her work — she just wants people to see it.

“[The Authors Guild doesn't] share the academic values that I think would lead people like me to prefer and want to maximize public access rather than maximize revenues,” she says.

This is a very important concern: the settlement agreement, as negotiated, does not sufficiently represent my needs and concerns as an academic author. Access to knowledge is paramont; profit is secondary.

Because of this, I’ve joined other academic authors in signing a letter to the judge ruling on the proposed settlement, penned by Dr. Samuelson, that outlines this significant fault in the settlement agreement.

While acknowledging that the Google Book Search project potentially represents “extraordinarily valuable public good with the aim of greatly enhancing public access to the knowledge”, the letter expresses that “If approved, the settlement will fundamentally transform the cultural ecology of public access to books; yet, we fear that this may not be in entirely beneficial ways.”

Specifically, the letter discusses three primary concerns about the proposed settlement that are “unfair to academic authors and researchers or pose serious risks for harm to academic author and researcher interests”:

1. The overarching concern that neither the Authors Guild nor the individual plaintiff-authors in the Authors Guild v. Google case have fairly and adequately represented the interests of academic authors during the litigation or in the course of negotiations that led up to the proposed settlement.
2. The general opacity of the settlement agreement, and the parties’ intentions with respect to it, that have made it difficult for many authors, especially academic authors, to make well-informed decisions about how to respond to it.
3. Concern that the Settlement Agreement is private legislation in the guise of a class action settlement.

The closing paragraph aptly sums up the tenor of the entire document:

Whatever the outcome of the fairness hearing, we believe strongly that the public good is served by the existence of digital repositories of books, such as the GBS corpus.  It would just be better for Google not to have a monopoly on it.  The future of public access to the cultural heritage of mankind embodied in books is too important to leave in the hands of one company and one registry that will have a de facto monopoly over a huge corpus of digital books and rights in them.  Google has yet to accept that its creation of this substantial a public good brings with it public trust responsibilities that go well beyond its corporate slogan about not being evil.

I speak last on a panel of esteemed experts, including Angela Maycock, Office for Intellectual Freedom, American Library Association; Tom Leonard, University Librarian, UC Berkeley; and Jason Schultz, Associate Director of the Samuelson Law, Technology & Public Policy Clinic at U.C. Berkeley School of Law; fellow, Electronic Frontier Foundation.

They will certainly cover all the important terrain, so my remarks will focus on my desire to trust Google when they say they’re “thinking hard” about these issues and promise to “protect readers’ privacy rights”, while noting their track record is reason enough to cause us some pause, and is why we’re pushing so hard as advocates on these vital concerns.

I will also suggest a few tactics they can take to engage in the ethical-design of the proposed service, and will close with a call for coders to help develop a version of TrackMeNot for Book Search, thereby giving some power back to the users to obfuscate their book search activities.

A rough draft of my remarks are here, and a pdf of my slides are here.

You can follow the tweet stream for the conference at #gbsfia.

UPDATE: PCWorld has some coverage of our panel discussion: “Privacy Missing From Google Books Settlement”, which was also picked up by the New York Times.

YouTube video of the panel presentation is here.

Joris van Hoboken recently brought this section of the Google Book Search Settlement Agreement to my attention:

Section 3.7(e) Google’s Exclusion of Books

Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons. However, Google’s right to exclude Books for editorial reasons (i.e., not for quality, user experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google.  Accordingly, because Plaintiffs, Google and the libraries all value the principle of freedom of expression, and agree that this principle is an important part of GBS and other Google Products and Services, Google agrees to notify the Registry of any such exclusion of a Book for editorial reasons and of any information Google has that is pertinent to the Registry’s use of such Book other than Confidential Information of Google and other than information that Google received from a third party under an obligation of confidentiality.

In short, Google can refuse to provide access to a particular book in its Book Search service for “editorial reasons.” In such a case, Google will notify the Registry and provide the a digital copy of the book which could be made available outside of Google’s services (this provision is outlined in a subsection I haven’t reproduced here).

The Settlement Agreement is silent on what these “editorial reasons” might be. While it differentiates them from “non-editorial reasons”, which might include legal restrictions (the copyright holder hasn’t granted the necessary permissions, the book is child pornography and illegal in certain jurisdictions, etc) or technical limitations (the pages simply aren’t scannable, etc), there are no definitions, guidelines, or limitations on what kind of editorial discretion Google could perform in restricting access to certain texts.

Google’s approach to censoring content is a bit scattered, but clearly controversial. In its Web index, Google famously includes everything that is legal (including hate speech), and typically only excludes pages such as child pornography or those subject to a DMCA takedown notice. While you can filter your results to exclude some objectionable material, Google performs only minor censoring of its Web search product (notable exceptions include regional censorship in China or Germany, etc). Nearly all known instances of the removal of content from Google’s index were, in one way or another, legally required. Thus, framed in the language of Section 3.7(e) above, these were “non-editorial” exclusions. To date, I know of no purely “editorial” exclusions from Google’s index: even if they don’t like the site, they still include it.

On YouTube, Google takes a more aggressive stance towards censoring objectionable material, exerting editorial discretion in removing content that violates “community guidelines, which includes restrictions on pornography, sexually explicit content, graphic or gratuitous violence, or “videos showing bad stuff like animal abuse, drug abuse, under-age drinking and smoking, or bomb making”.

Now, I’m not sure how much input the YouTube “community” really has in crafting these guidelines, but Google appears to respect that YouTube started as, and continues to be, a user/community-driven space for sharing videos. As YouTube grew, certain norms of appropriate content emerged, and Google appears to be trying to respect and maintain those norms. By couching them as “community standards,” and giving individual users the ability to report problematic videos, Google has, at least in appearance, handed some of its editorial discretion to the YouTube community. But, at the end of the day, it remains Google who gives the thumbs up or thumbs down to a particular video, carrying with it potentially dangerous consequences.

If Google appears to be following the norms of appropriateness and access within the historical context of YouTube, will it do the same for books within Book Search? While an amateur-based online video sharing website might create certain community standards for appropriate material, the American Library Association has long held the position of ensuring and protecting patrons’ intellectual freedom and full access to information, recognizing the essential value of the freedom to read any and all materials that are legal for the library to possess.

[While librarians do exert discretion over books acquired, these decisions most commonly are made based on budget/space considerations (your local library branch can't buy and shelve all books), as well as regional considerations (there simply won't be too much demand for How to Build an Igloo at the San Antonio Public Library). But these kinds of constraints are just what the Google Book Search project are supposed to help overcome.]

So what kind of editorial discretion does Google contemplate given the inclusion of Section 3.7(e)? Will it respect the existing norms of access for books in public libraries, and include all materials that the law allows (essentially making Section 3.7(e) irrelevant)? Or will it create a YouTube-like policy that might exclude books deemed (by who?) to be offensive or otherwise filled with “bad stuff”?

This is a critical issue that the Settlement Agreement fails to adequately address. I will pose these questions at the Public Index, and hope that they might be further addressed at upcoming conferences discussing the Settlement. I welcome any further thoughts or reactions.

Notably, the Electronic Frontier Foundation and the ACLU have called on consumers to pressure Google to build significant privacy protections into its Book Search service, demanding Google provide protection against disclosure of the books one reads, engage in limited tracking of user activities, provide users control over the data Google collects, and ensure transparency and enforceability of all privacy-related policies and procedures. The Center for Democracy & Technology followed with their own analysis and set of recommendations.

In response (and actually before CDT was able to get their document out the door), Google posted a quick FAQ regarding privacy and Book Search. Google insists that the services provided under the Settlement will be bound by its general Privacy Policy, that it will only share aggregate usage data with the Book Rights Registry, that Google Accounts will not be required to access the services (although there will be some access limits for those who don’t login). Google also defends the absence of privacy provisions in the Settlement Agreement because that was a document stemming from a legal dispute over copyright.

While Google has tried to appease the critics, it seems there are still many unanswered questions regarding ensuring reader privacy if the settlement gets approved, both in principle and practice. I’ll be working through these issues as I prepare a talk for the “Google Books Settlement and the Future of Information Access” conference organized by the UC-Berkeley Information School, and I welcome any suggestions or insights readers might have.

Today, Fred Stutzman revealed a particularly troublesome example of how relying on the “My Library” feature of Google Book Search might mean you have even less privacy with regard to your online intellectual endeavors:

I was shocked to find out that saving a book to your library requires that the book be added to your “shared library”, a public listing tied to your Google account.

There is no way to save a book privately in Google Booksearch.  As Google writes in their FAQ, “When you add reviews, ratings, notes, or labels to a book—or when you add a book to your my Library page—that information will be publicly displayed on Google Book Search.”  They go on to write that “No matter where you use these features, the information you submit will be displayed publicly.”

I couldn’t believe it either.  If you want to set up a Google Library, even if it is just for convenience sake, you have to show the world what you’ve been reading.  As far as I can tell, there’s no good technical or legal reason why one can’t save a book privately, or limit their book-sharing to a group of friends.  This decision seems arbitrary and downright scary (or at least terribly ill-advised).

Stutzman points out the incongruence between Google’s policy and the American Library Association’s longstanding code of ethics, bill of rights, and core values, including their commitment to protecting patron privacy:

I must wonder why Google is not adhering to ALA policy, and the broader cultural norm of protecting library patron privacy.  As Google partners with large institutions and attempts to monetize Booksearch, failing to respect patron privacy seems foolish and potentially dangerous.  A patron researching a sensitive topic, or a topic that reveals information about the patron (for example, books about a health condition) will have their information revealed publicly if they add such a book to their library.

I also suggest a read of the comment thread on Stutzman’s post, where a suggestion has been made (channelling Zuckerberg) that all your favorited books should be public in an ideal world. Stutzman aptly counters such a proposition.

This is a serious design flaw (or a seriously flawed design decision). Google must act quickly to give users control over which books in their library are publicly viewable.

Siva Vaidhyanathan (a professor in my department, btw) has posted reader comments from his original request for feedback as to some of the concerns with of Google’s plan to digitize library books. He was kind enough to include my repsonse, as well as the insight of Jessamyn (who Siva describes as a “major voice in the library community”). Here’s Jessamyn’s contribution:

A lot of my concerns were summed up in this article by Wade Roush, particularly the ownership of information issue.

While I understand why Google feels entitled to dictate terms of use on content they have “value added” through scanning and digitization to, it’s a far cry from making that material flat-out AVAILABLE — for whatever you want, for whatever you can imagne — the way the library did, and does.

Google indexes my web site but Google does not own my web site. From the article:

“The Michigan library, says Wilkin, may do whatever it likes with the digital scans of its own holdings—as long as it doesn’t share them with companies that could use them to compete with Google. Such limitations may prove uncomfortable, but most librarians say they can live with them, considering that their holdings wouldn’t be digitized at all without Google’s help.”

Brewster Kahle’s doors metaphor is worth learning.

It really looks like this will increase access at low cost, but that’s different — especially in other countries — from no cost. I suppose one could argue that having one copy of a book in one location places prohibitive costs on someone who is not at that location in the current library model, but the larger library network that you can reach via interlibrary loan and co-operative sharing takes care of a lot of that, assuming people know about it.

In short, it’s going to happen. Libraries can play more of a leadership role both in preserviing access to these materials and keeping Google in check when they try to use their massive computing systems and storage banks to increase their own market share for their advertising. Putting this sort of knowledge-is-power power in the hands of a publicly held company [even one that does no evil] which has certain shareholder obligations, is concerning to me.

Posted by: jessamyn at June 3, 2005 08:50 AM