Since writing my WTF! US Court Declares You Have No Privacy On YouTube article, more information has come out suggesting that Google will be able to turn over information to Viacom about what’s watched on YouTube without having to say who exactly who was watching it. Nor, does it seem, that Viacom itself wants that level of detail. So perhaps a bullet will be dodged on the privacy front. More below, including some direct answer from Google.
Google argued that it shouldn’t have to hand over viewing records because, among several reasons, it potentially was a privacy violation. The judge in the case seems to have dismissed those concerns and ordered the records be handed over with any associated account information, rather than the more savvier move of simply ordering that account and IP information be removed. Had he done that, it appears that Viacom would have been happy. According to the LA Times:
In a statement, the entertainment giant said it did not ask for nor would it obtain “any personally identifiable information of any user.”
“Any information that we or our outside advisors obtain — which will not include personally identifiable information — will be used exclusively for the purpose of proving our case against YouTube and Google, will be handled subject to a court protective order and in a highly confidential manner,” the New York-based company said.
Viacom general counsel Michael Fricklas said “unequivocally that this information will not be used” for the purpose of trying to find the identities of people who uploaded copyrighted Viacom clips to YouTube.
For its part, Google has sent a formal letter to Viacom asking if it can remove such information:
The Court’s order on your clients’ motion to compel has generated a significant volume of public protest concerning the demand by Viacom and the putative class plantiffs for portions of the YouTube logging database reflecting users’ viewing activities. As YouTube explained before your motion was filed and as it argued in opposing your motion, Viacom and the other plaintiffs’ demand for this data threatenes [sic] to compromise user privacy. We see no reason why Viacom and the other plaintiffs seek or require such information. Given Plaintiffs’ stated reasons for seeking information from the logging database — to conduct proportionality analyses — potentially personally identifiable information should be irrelevant. Indeed, Plaintiffs have previously represented that they do not desire to investigate users’ viewing activities, and Viacom’s general counsel is on record today stating that Viacom does not want to receive individuals’ usernames and IP addresses. Accordingly, we request that Plantiffs agree that YouTube my redact usernames and IP addresses from the viewing data in the interests of protecting user privacy.
Given the sensitivity of this issue we ask for your response by no later than the close of business today.
Hopefully, Viacom will agree to the request. If it doesn’t? Google senior litigation counsel Catherine Lacavera didn’t want to speculate about what Google would do next. But it is under no particular deadline to hand any data over. So, we wait and see.
Meanwhile, how did the judge come away with the idea that user names were anonymous? Lacavera said Google couldn’t say exactly what was in its motion arguing against releasing the records but that there appears to have been some confusion. She said it was explained that some user names might be anonymous in nature while others (say, people who pick their real name as a user name) wouldn’t be.
Also, the judge said Google had produced no civil cases showing that IP information might be deemed private. But didn’t Google cite the case it won against the Department Of Justice? Lacavera said that again, Google couldn’t say what exactly was in its motion but that it fought for privacy “vigorously” and that the DOJ case involved search records without associated IP information and so wasn’t exactly comparable.
How about the ongoing process to anonymize Google search logs, which I covered in my earlier article. Does that impact YouTube? No, Google said. YouTube logs are not anonymized in part because YouTube needs separate logging to comply with laws in different countries. Of course, Google web search operates in different countries and has to comply with laws in them — but its data can be anonymized. So perhaps YouTube should be doing the same. Still, IP addresses aren’t the real worry in this case. It was the threat of handing over viewing records with associated usernames that was the concern.
Finally, what about users who clear their viewing history on YouTube. Does that really clear all records that Google has? Still waiting to hear on that.
Postscript by Barry Schwartz: The YouTube blog posted on July 4th, The Law and Your Privacy, basically explaining their request to keep IP addresses and user names outside of the data that is being handed over to Viacom.