48 hours of book programming beginning saturday morning at 8 a.m. eastern through monday morning at 8 a.m. eastern. nonfiction books a weekend every weekend right here on c-span2. >> here's a look at what's ahead on c-span2. .. >> host: well, on march 1st of this year google changed its privacy policy, and that's our

topic this week on "the communicators." markham erickson, could you explain what google did to change its privacy policy and why? >> guest: well, google announced about six weeks ago that it was preparing to change its privacy policy, the first time, i think, a company of that size has given that much time and engaged in that kind of education campaign. but what they did is they took diverse privacy policies that apply to some 70 different products that google provides, and they consolidated them into one single privacy policy that was uniform across all of those different products. >> host: and what's the benefit of google -- to google in doing this? >> guest: one, you only have to manage one privacy policy, and they would also say that they're able to provide more targeted services and more useful services to their users. so, for instance, if you are

using their gmail product and you are inviting people to a party that they may know who some of your friends are based on your interactions on a google social network and suggest friends that you might want to invite, and they're able to do that because they are working with you both on their social network as well as their e-mail product. and for the user what they would say is that it provides the user with one single privacy policy rather than having to navigate 70 different ones and that it provides the user with a more consistent, uniform experience across all of their different platforms and where they can get more targeted information advertisements at each platform, so it'll be a better experience for the user as well. >> host: before we introduce our other guests, what is the open internet coalition? >> guest: it's a coalition of leading internet companies. most of the big internet

platforms, social media companies -- >> host: including google. >> guest: it's a coalition that i run out of my law firm. >> host: also joining us here on "the communicators" is marc rotenberg, executive director of the electronic privacy information center. mr. rotenberg, what is your group's viewpoint on the new google privacy policy? >> guest: well, we opposed it. we think the right way to think about what google did is a change in the terms of service. in other words, before march 1st google had different terms of service for each of its products. if you were using e-mail, for example, it collected your personal information to provide an e-mail service. if you were using youtube, it collected your information to provide youtube is service. but google wanted to combine all of that user information from its different products, and so it has simply told users that as of march 1st the terms of service were going to change, it

would combine all the data. it didn't give people a choice. they could essentially stop using google which i think for most people means stop using the internet, and we objected, as did many others. >> host: well, what's the damage that would be done to a user of google? >> guest: well, i think in the first instance there's a genuine concern here about the company's commitment to users, the company's commitment to the privacy of users. those privacy policies reflected in the terms of service essentially is what internet users rely on when they select a google service. and if they choose gmail, for example, over another service and google turns around and says, well, we had one policy before but now we're changing it, the user's in a very awkward position because the other thing the companies typically do is collect a lot of the day to to lock the user in so that your address book, for example, which you build up in the context of a particular service makes it very

unlikely or certainly not easy for you to move to another service. so we think it was unfair. we actually brought a suit here in washington. we sued the federal trade commission which surprised people, people said, well, why don't you sue google? we said, we're going to the federal trade commission because google's actually under consent order in part because of an investigation we had urged the ftc to pursue to respect user privacy. we thought the changes google had announced violated that consent order, and we sued the ftc to try to get them to enforce it. >> host: our guest reporter this week is paul kirby, senior editor of "telecommunications reports." >> host: what should they have done, marc, in you view? okay, here's what we want to do, you can opt out of this, or how should they have done it? >> guest: i think the best way would have been by opt-in. google could have said to users, listen, we have a new approach, we think it's going to provide only benefit to you, we think

you'll get advertising you're more interested in. we understand that we have a chiment to you right now in terms of our current privacy policies, but we'd like to give you the opportunity to choose our new integrated google platform, and users might have said, hey, that sounds good, i'll sign up. and certainly we would not have objected if google had done that because so much of the internet is about choice. i think the less good internship would internship -- alternative would have been for google to say, listen, we really want to do this, we respect that some people might not want to, we'll let those folks opt out. so before march 1st you can make a choice if you want to opt out, this is how you do it. google didn't even do that. um, and i think the other point worth making here, differing a little bit with markham's earlier comment, when facebook proposed a similar change in its change of service back in 2009 led to a public discussion, people said we actually don't like this idea, facebook said,

you know what? if you don't like it, we're not going to do it. so another option for google actually would have been not to go forward with the change after they heard the criticism. but they took none of those options. no opt-in, no opt out, no withdrawal of the proposal. they simply pushed forward. >> host: we don't have google here but, markham, do you want to respond about what marc said about how they should have proceeded? >> guest: well, you don't opt out of privacy policies. a policy, and a policy is something a company states is how they're conducting their business. when you go the washington post web site, you can look at their privacy policy, and you don't opt out of a policy. i think that the response to marc, and i respect where marc's coming from, but i think marc's point of view in the space and has been is a different point of view than how we've handled privacy since the inception of the commercial internet. and i think marc objects to that, and i understand that, but his criticism really isn't about

google, it's about the privacy policies across the commercial internet. because google's policy is consistent with the policies of all the major social networks, with companies like microsoft and companies like yahoo!. if you think about a facebook, they have a lot of different products and services under one platform. google, essentially, is a platform, but those products are across different pages, so you don't go to one google site to get all of those services like a yahoo! or facebook where it's one portal. google essentially said we're going to have one policy that applies to our products. the trade-off is this, and this is one that marc bristles with. the vast majority of consumers in the 90% are okay with this concept that these social networks and companies like google provide free services like web-based e-mail services, like mapping services, like search service, and they do that

for free because they're able to sell nonpersonally identifiable information about the things you do on the internet, the browsing habits you have whether you go to sports sites or whether you go to hopping sites, and they're able to -- shopping sites, and they're able to tell advertisers that this user and, again, it's not personally identifiable, that this person on this computer happens to like sports sites. so they're able to sell you ads that are more relevant, and they're able because of that ad revenue then to provide those free services. >> guest: you saying people -- you're saying people understand that free comes with ads -- >> guest: people want ads that are more relevant to them. if you're on sports sites, you don't want to get ads about shopping sites. it works for the companies to provide the free services, and it works for the users because they're getting more targeted information. marc has a very european approach about privacy which is

that the information itself is data and information that you should have much more control over even if it's nonpersonally identifiable. that's a european objective that's not the way we do it. the expectations that users have and what google's doing are consistent with the expectations that you have when you go to the internet. so when google announced that they were changing their policy, users could have decided to revolt. they didn't. in the facebook situation, there was a lot of conner the nation. -- consternation. what google has done here is, essentially, consistent with what these other sites do. the second issue is that the federal trade commission has objected to marc's lawsuit. the federal trade commission governs the space, they are able

to enforce the consent decree, they have with several of these large internet companies through their statutory authority, and they do that. and that's the appropriate governance here. but i also think, to anticipate what marc might say, that we should have some privacy legislation, that we actually should have a more robust framework so that these complicated privacy policies -- and they're complicated -- could be put under a system of either best practices or some sort of legislative framework where you'd have a federal government seal of approval for practices that are consistent with user expectation. >> host: marc, you started shaking your head -- >> guest: i don't know where to begin. [laughter] i think markham's just making this stuff up. let me try to answer some of the points that he made. first of all, this is hardly my view with respect to the concerns about the change in google's privacy policy. you had 36 state attorneys general objecting. i don't think they're in europe,

by the way, i think those are states within the u.s. you had congressional leaders in the democratic and republican party objecting. you had 60 consumer organizations from the united states and europe objecting. in fact, i would challenge markham to come up with a move made by an internet firm so far this year that has been more controversial than google's march 1st change in its privacy policy. i can't come up with one. i think they left themselves wide open to a lot of criticism. but here's the most interesting number, and that is what is the internet user? markham said internet users have accepted this idea that they give up potential information for free -- personal information for free use of the internet, and i'd like to ask him to put some fact behind that, some research, some report, some study that lends credence to that claim. and the reason i say that is because i recently looked

closely at the pew study on internet life. they conducted a very extensive survey on america's use of search engines, fascinating survey, by the way, most come prehepsive review that's been done in seven or eight years. they found, first of all, that 92% of american adults use a google product every day. majority of search is done on google. they found that 68% of people using those products object to personalization, object to page rankings based on personal interest, and 73% were not okay with the idea that personal data was being collected to generate search results. so on this critical point apart from the fact that what google did on march 1st was widely opposed by just about everyone who considered the issue except for, i think, a small group of washington lobbyists, as to the view of internet users, i think

there's a clear majority against what google is doing and other companies that rely on personal data this way. >> guest: i think this is the problem, we mix apples and oranges. what google's doing is not sharing personal information under any widely-accepted standard that we have in the u.s. government with third parties. they share anonymized information about browsing habits to deliver more targeted advertising -- >> guest: really, do you make this stuff up? google admits they keep user-identified search histories for 18 months. the entire debate about nonpoising histories deals with a period of time -- even they wouldn't say that it's not user identified -- >> guest: this is where you're mixing apples and oranges respectfully. >> guest: that's not true. >> guest: that's absolutely wrong. google does not share personally-identifiable information with third parties. do they collect personally-identifiable in information that they keep?

yes. >> guest: right. so what do they do when they get subpoenas or search warrants? they're nonresponsive? you just said a moment ago that they don't divulge -- >> guest: you are mixing apples and oranges. government access to personal information is governed under -- >> guest: are they a third party -- >> -- and under our fourth amendment jurisprudence. what you're confusing is law enforcement access to information that not only google has, but every web site that collects personally-identify blg information -- identifiable information, shopping sites, sites that collect your address, and the government has access to that upon subpoenas or lawful process under our electronic surveillance laws. >> guest: but you're saying commercial third party -- you just said they don't disclose information to third party. >> host: mr. rotenberg, you can answer -- >> guest: okay. i teach this stuff. >> guest: when it's law enforcement, yes, then they are required to do so, and if you object to that -- and i agree

there are concerns in that space -- we should change the laws that govern when law enforcement can access and how they access personal identifiable information. that's not unique to google. that's the case across the internet. i agree that there's concerns there. that's not what this issue is about. >> guest: it's absolutely what this issue is about. wait just a moment. you say things that aren't true, and if i don't have the opportunity to respond, the viewers of this program are going to think what you're saying is correct. the point that your trying to make, what you're trying to argue is that it's different when law enforcement gets access to the information that google keeps about it users from google disclosing that same information to third party commercial providers, yes? and you're saying that all companies are subject to these law enforcement requirements which is also true. however, and this is the key point, google makes the decision to keep far more information about internet users than any ore company -- other company does, and because they have made that decision, because they

retain more data about google users, they leave those same people more vulnerable to those law enforcement requests that they know inevitably will come. and other companies which care about this issue make the decision not to keep so much information. they can delete search histories in two days, they can anonymize within six months. but google says, no, we don't care about that issue and, therefore, we're going to retain the data. and this is a very important point to understand because when google chose on march 1st to combine the user data, they also made users more vulnerable to law enforcement requests. now the copyright investigation involving youtube means it's not just a youtube user's information that'll be disclosed, it means a google's user's information will be disclosed. it's across the 70 services. >> guest: that's absolutely wrong, and i'm not actually sure why you're saying that what i'm saying isn't correct because there is no criminal copyright

investigation against youtube, there's not. there's civil lawsuits which is governed by an entirely different statute than and framework than when the government asks for that information. and under our laws today the civil actors aren't able to get personally-identifiable information for their copyright investigations. in fact, that's what the southern district of new york said when viacom sued youtube. so it's actually wrong to say that users aren't currently under a threat of access under or youtube viewing habits in some sort of current investigation. absolutely flat wrong. there is a criminal standard, as you know, that applies to government access of information, and, in fact, google as well as many of the large internet companies are leading the charge to amend the laws to insure that there is, that a subpoena is required for personally-identifiable information to make a user's expectation about what's privacy for them when they're keeping

documents or storing other things in the cloud, that it's the same framework that they would have if they're seeking to get that document, the government that is, from your home. that's the appropriate framework. google collects more information about users mostly because they're at one of the bigger companies, so they have more information coming in. if you compare the information they collect to a smaller search engine like ask.com can, ask doesn't get the volume of information coming in that a google does. so part of the reason that they're getting so much information is because they have more users. when the government accesses that information, when they're the third party, google actually has fought the government more times than any internet company i know of to say that users have a reasonable expectation about privacy in this space. i think what most viewers are thinking about when they think about this space is actually nongovernmental third-party entities, commercial entities and what information they get access to.

>> guest: can we talk about -- >> guest: that's the space they don't get any personal information. that is a case. >> host: mr. rotenberg. >> guest: all right. so this is a good, lively discussion and, you know, let's take up this second point which is the third-party disclosure to commercial actors. and you, as i understand your argument, you want to give a lot of credit to google for not disclosing user information to third parties. and the obvious answer is that google is dominant across so many essential internet services, it doesn't matter whether it discloses the information to third party. what matters is the sharing within the large internet firm in the world between an e-mail service, between a video platform, between a mapping service, between a photo-sharing service. all of these are google services. and what google does by combining that information is to consolidate its no knop position. it would -- monopoly position. it would be adverse to google's position to disclose user information the third parties because google is not interested

in creating competitors or creating choice for users of current google services. it's completely consistent with their model to keep the information internal. and this actually underscores the significance of the march 1st decision because what google did in addition to changing the testimonies of service -- changing the terms of service and reducing the privacy protection for internet users, it also consolidated its control over so many of these key, essential internet sectors. and that's troubling to me not only for privacy reasons, but also for reasons of competition and innovation. because i think the internet does thrive when new firms can come along with a better idea or can compete and can draw users. what google is doing now by combining these policies is actually making it more difficult for others to participate in the internet economy, and the thought that somehow it's a benefit that they're not disclosing user data to third parties is actually a reflection of their aim to have as much control across the net as possible.

>> guest: but this is what's so frustrating about this conversation. so you've acknowledged that google doesn't share, and it's not in their interest to share sensitive personal information with third parties. i thought that's what this debate was about. then you pivot to say, but the fact that they're not sharing with third parties is troubling because it prevents competition. that's a totally different issue, and it's actually one that is being looked at and should be looked at by competition counsel in various jurisdictions, and google should be looked at, and they do, and they have to defend themselves on whether they're acting lawfully or not. i think they have a good case to make. but the competition policy side of this is totally different than the privacy -- >> host: marc, let me ask you a question. they currently have privacy guidelines for those individual services. they consolidated it. how does that allow them to consolidate their -- >> guest: well, because key to understanding a privacy policy is individuals provide

information that's relevant and necessary for the service they're signing up for. and we know this in quite a bit of detail specifically with regard to google because of what happened with the introduction of google buzz last year. when google was trying to enter the social network space and they had a large base of gmail users and they wanted to introduce a social network service and they weren't sure how to populate it and whether, you know, affirmative consent would draw enough users, they basically decided to convert their gmail subscribers into social network buzz subscribers. and the personal address information that was in the gmail account holders' record was made available publicly to try to launch the social network service. and we went to the federal trade commission and said this is terribly unfair because people who signed up for gmail service are finding their personal information that they thought was in an address book now widely accessible on the internet.

google, interestingly, i think agreed with us. they pretty much conceded that it was a mistake to introduce buzz as they did. the ftc launched an investigation, ended up agreeing with us, required a comprehensive privacy program for all of google's products and services based on what had happened with buzz. and this is the key point that bears restating. the information that people have provided for an e-mail service they didn't expect to be used for a social network service. so when google came along at the end of january this year and said, oh, that information that you provided for gmail, we're going to make it available across all of our services. we -- [inaudible conversations] yes, exactly. we understandably went to the federal trade commission, and we said they simply can't do this. it violates the consent order. now, the case we lost wasn't on the merits. in fact, the judge agreed with us that the google changes raised, in her words, "serious concerns." she simply concluded that federal courts didn't have the ability to force the federal

trade commission to take an enforcement action. >> host: did that surprise you because consent decrees are approved by courts? >> guest: we thought this consent decree had not been approved by a court, but it was a final order from an agency, and we actually thought we had a good final argument. >> host: as my. >> guest: exactly. the enforcement provision from the ftc actually says in a nondiscretionary fashion, so we went to court and said there's a consent order, it's a final order, it should be enforced. the agency is required to enforce its orders. but as i said, we lost not on the merits, it's simply a question of judicial review. coming back to markham's point, obviously, we have different perspectives on this issue, but i think it's very important in this whole debate, you know, between privacy groups and people representing industry not to lose sight of the interests of users because it really is their data that we're talking about. we're talking about how personal information is being collected by firms, how it's being used,

whether their privacy's being respected or ignored. >> host: markham erickson. >> guest: personal information, though, marc, is not being shared with commercial third parties. that's not what this policy is about. google has entered into a concept agreement with the federal trade -- consent agreement with the federal trade commission that is one of the most robust in the space. they're subject to 20 years of audits from the federal trade commission to review their policies. the reason i suspect your organization went to the courts to try to get action was because you were getting rebuffed from the federal trade commission that has the authority in this space, is able to enforce their consent decree if they think there's a violation of that agreement, they'll take appropriate action. >> guest: that's simply not true. we were never rebuffed. >> guest: but then it was inappropriate to go to the courts, and that's what the federal trade commission said. >> host: marc rotenberg, do you see other companies using the

google model as their own model in the future? >> guest: i don't think there's any other company that dominates the internet in the way google does. clearly, facebook is a competitor to google, and i think we can understand a lot of what google is doing today in terms of their concerns about facebook gaining greater control over what is ultimately a battle for advertising dollars. i mean, both companies rely very heavily on advertising dollars. that's their core business, and they need to provide services that will draw users. but no other company is in google's position which is why we maintain this focus. >> host: but as private companies, and if they're clearly stating what their policies are up front be, shouldn't they be allowed to proceed? >> guest: well, i think they can if it's fair to the use user. we have to understand, for example, how these policies operate. and one of the business concerns that the federal trade commission has always been sense tef -- sensitive to is the notion of bait and switch. in other words, a company can

say to a customer, you know, we have a great privacy policy, you should sign up with us, we'll respect your data, we don't do anything wrong with it. and the user says, hey, that sounds great, and they build up a big address book, and they build up a social network and all sorts of preferences, and then a few months later a year later says -- the company says we've got a new business model, and we're going to change that privacy policy. now, we think it's going to be really good for you, and you're going to like it, but what we promised you before we're not going to do anymore. and that's the basic problem for users. it is this sense that companies try to draw them in with an attractive policy, but once they've got them then the rules change. >> host: markham erickson, final word, and then we're out of time. >> guest: well, i think that when a company spends six weeks educating its user base about a change of policy that they believe is helpful to users and will make their product better,

they shouldn't be punished for the fact that they've tried to set the expectations by not baiting and switching anybody, but actually saying to their use egger community and -- user community and highlighting, this is what we're about to do six weeks from now. and so that kind of bait and switch tactic, you're right, should be gone after, it has been gone after in the past. you've led the charge on some of those issues. rightly so. this is simply not one of those cases, and i think respectfully, some of the criticism about collecting information and what laws should apply in that space are proposals that have been rejected by mainstream policymakers in this space since the beginning of the commercial internet. that is a conversation that we should have, but the criticism about google i would respectfully say is more of a criticism about the commercial internet. >> host: and, unfortunately, our conversation time has ended. we have been joined by markham erickson of the open internet coalition, marc rotenberg of the