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Google’s Court Jurisprudence and its absolute discretion
The nature of interactive Social Medias (SM) impulses users, to place their own and private lives, in front of the public eye. The degree of universality varies according to the degree of openness intended by the user himself, but what most users do not know is that their data, even published within the private circles, is handled by many bodies and are most often subject to data trade according to higher price.
But what about using SM data to define and locate criminals? The question of identifying a particular user on SM is one of the most complex and difficult subjects, and today it is a matter of great concern to the legal society. In fact, SM contains, among other things, many digital files such as intellectual works protected under intellectual property rights, and gives the individual the possibility to publish information that may be harmful to an individual. So identifying a real user is important, and it is necessary to identify the perpetrator of certain crimes that may be committed on or outside SM.
Usually, the judiciary decisions do not address directly the method of real user identification on the network, which may differ entirely from the user's default identity. Consequently, a French judgment dealt with a matter of identification on SM, and considered that it represents an important element of vigilance and alert each time a case is submitted to courts and related to the use of Internet.
In 1993, a US painter from New York published a legendary painting that became an adage for Internet browsing, it says: « On the Internet, nobody knows you’re a dog! ». In this sense, it is very easy to create a fictional identity and to do impermissible acts under this name or identity, without knowing the real name of the perpetrator. Usurpation of a name or identity fraud is also common and is used in a manner that is often different and varied.
In fact, the question of the real identity of a SM user requires more intelligence intervention than legal one. The IP address of the user's device must be determined, and therefore the geographic location is identified through the local ISP (Internet Service Provider). Indeed, this is a very technical and complex issue for lawyers and judges, and does not produce guaranteed outcomes, since the device’s user may be someone other than its owner.
Nevertheless, has a user ever wondered about his private data storage? Is it kept in safe environments or is it subject to trade? The dubious connections that connect Facebook, for example, to several bodies, raise several question marks, especially as to the vast amount of personal data that the network contains.
Actually, Facebook knows more about yourself than you really do. That’s why, big wave of SM followers are requesting to amend Facebook terms; so that every time the user wants to access Facebook website, he will be asked the following questions: « All that you add to this website, one day becomes a public data, so do you agree? ».
Today, data contained on SM helps to identify a pattern, behavior and habits of individuals, whether suspicious or suspended. It also helps investigating the user's environment based on his or her electronic links with friends and others. This is related basically to the right to privacy, but does this right stands on SM? The most prominent theme is the extent to which the private lives of SM users are reconciled with the right of investigating, that authorities wants to obtain even these related directly to private data. Practically, investigators are accessing even unpublished information to users via official requests from SM management, which responds often to these requests.
It is beneficial to underline here that SM does not comply all the time with court’ decisions; it is a discretional matter. We highlight here a case where a Lebanese judge requested from Google the removal of several links being harmful and containing privacy attacks. Subsequently Google response was as follow:
« Google can comply with court orders when these decisions are properly motivated and list the specific legal grounds justifying such removal under the applicable laws. We note however that the Court's decision dated 04/17/2019 did not give such legal grounds. Therefore, we invite you to obtain additional documentation from the court which provides legal grounds for such removal ».
Europe and the U.S. continue to drift further apart on Google. Even as European parliamentarians and regulators seek ways to restrain Google’s discretion over search results, U.S. courts continue to affirm Google’s right to do whatever it wants with search results — paid and organic
However, we have experienced in some jurisdictions, an uncommon practice from investigators, where they confiscate the smart phones of users, especially in rebellion and revolution events, in order to track the chain of connections. Thus, in many cases, they oblige users to unlock their phones by putting fingerprints, or pass codes. Is it also considered to be legal investigations?
Let us be objective, the real problem exists in the judiciary supervising the investigations, and this is where the real problematic reside. Prosecutors should favor users Privacy protection each time when investigators confiscate personal devices and smart phones, especially in cases where they do not physically attend of do not have concrete surveys onsite.
Balancing between privacies protection, user’s prior consent and crimes investigations’ needs is primordial. Are these elements applicable today? Or we are considered as binary codes and digital logs files managed and retrievable anytime by SM, leading to an unprecedented absolute discretion.
1. Photo's courtesy: https://searchengineland.com/another-court-affirms-googles-first-amendment-control-search-results-209034
2. Ibidem.