Google's New Privacy Policy: Close But No Cigar

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Justice Sotomayor's logic preserves the sanctity of the Fourth Amendment in the context of the massive flow of digital information available on the Internet today, and as such, it is a very important opinion.

However, the Fourth Amendment restricts only what the government can do; it bears no relation to the activities or policies of individuals or organizations. There are plenty of other laws that in one way or another seek to protect the privacy of personal information from misuse by the private sector, but the best protection an individual can have is the attitude and policy of the entity to whom one's information is voluntarily entrusted. Happily, but slowly, major players on the web are taking steps to protect your privacy, or at least to let you know just how and why it can be forfeit. So last week's announcement by Google (probably the largest collector of information on the planet, outside of Beijing) regarding privacy is not only important, but very timely in light of the Court's decision in the Jones case.

Google's new policy is exemplary in its brevity, comprehensibility, and candor. If you disagree, try reading one from a bank or a wireless carrier (emphasis on the word "try.") In simple language, it sets forth—among other items—the kinds of information being collected, how Google and its associates may use that information, and what you can do to limit that usage. It really does tell you everything you need to know, for better or for worse, and as compared to the policies and procedures of other information collectors, it seems reasonable and fair-minded. It does, however, embody one glaring mistake, best illuminated by the light of Justice Sotomayor's concurring opinion.

[Article: If You're Worried About Medical Privacy, Better Take Some Xanax]

Contained in the "Information Sharing" section there are assurances that information provided to Google will be shared with third parties only in limited circumstances. Google lists four circumstances, the first one being when, "We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request…"

Hold on, Bucky.

What exactly constitutes an "enforceable governmental request?" This sentence should read: "We will share information with a Governmental entity only when presented with a valid search warrant issued by a court of competent jurisdiction." Such a provision would make it obvious that by giving information to Google, you do not intend to waive your constitutional rights, and it would make it clear that despite the fact that your information was shared willingly with a private sector entity, you reasonably retained an expectation of privacy against Government intrusion. If everyone's privacy policy had language of this type, sooner or later every court—and every legislature—would remember all that stuff about the Fourth Amendment.

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