We have covered many of the search ad keyword lawsuits aimed between competitors or directly at the search engines in the past. Nowadays, it seems like a new suit around this topic is filed weekly. Typically these suits go after trademark violations and the like, but a new suit is focusing on a privacy legality.

Suit over search-engine keywords tries new angle from the Associated Press reports Habush Habush & Rottier is suing Cannon & Dunphy for buying their name on Google and Bing. Habush Habush & Rottier is taking the privacy angle, where in Wisconsin there is the “right-to-privacy statute” that prohibits the use of any living person’s name for advertising purposes without the person’s consent. Yes, both firms are based in Wisconsin.

Robert Habush, the president of Habush Habush & Rottier said:

We believe this is deceptive, confusing and misleading. If Bill Cannon thinks this is a correct way to do business he needs to have his moral compass taken to the repair shop.

Cannon told the AP:

This is equally available to Habush if he weren’t so cheap to bid on his own name.

I am no legal expert, but this case does seem unique from all the other legal cases on search ads.

Saying the host site was serving malware to users, Google has removed a controversial photo of First Lady Michelle Obama from Google Image Search. The site itself, however, remains listed in Google web search results without any visible malware warning.

Welcome to the murky world of free speech, politics, and Google.

It began last week, when Search Engine Roundtable pointed out a racist image showing as the number one result in Google Image Search for the term [Michelle Obama]. The image was apparently removed yesterday.

In a Google Web Search Help Forum thread discussing the image, a Google employee named Jem explained yesterday that there are three reasons why Google would remove content from its index:

“… Google views the integrity of our search results as an extremely important priority. Accordingly, we do not remove a page from our search results, or images from our Google Images results, simply because the content is in very poor taste or because we receive complaints concerning it. We will, however, remove pages from our results if we believe the image, page (or its site) violates our Webmaster Guidelines, if we believe we are required to do so by law, or at the request of the webmaster who is responsible for the image.“

(emphasis mine)

An offensive photo of Michelle Obama doesn’t obviously violate any of those three guidelines on its own. Google’s press office has yet to respond to our request for an official statement. But in the comments of today’s Search Engine Roundtable post, Google’s Matt Cutts says the site was violating Google’s webmaster guidelines:

“… that page did violate our webmaster guidelines because it was serving malware to users, which violates the quality guideline that says ‘Don’t create pages with malicious behavior, such as phishing or installing viruses, trojans, or other badware.’ I believe that the Images team did a general anti-malware sweep.”

Sure enough, a [site:] search for the site in Google Images produces no results. But the malware sweep apparently didn’t reach the main web search index. As Michael Gray points out on SER, the site itself is still listed in Google.com search results with no malware warning.

Making matters slightly murkier is that, as you see above, the image was hosted on Google’s own blogging platform.

Google’s critics will no doubt call this favoritism toward the Obama administration and be quick to point out the company’s ties to Washington, DC. Google CEO Eric Schmidt endorsed Obama for president, later campaigned with him, and then turned down an offer to join the administration. The Wall Street Journal has reported that Google was the fourth-largest corporate contributor to Obama’s presidential campaign. And we’ve reported about a few notable Google employees who’ve left to work for the Obama administration.

On the other hand, we’ve also written more than once about potential friction between Google and the Obama administration. Christine Varney, the Assistant Attorney General for Antitrust has been quoted as saying that Google “has acquired a monopoly in internet online advertising.” See our stories Will Obama Be The Downfall Of Google? and Google’s Anti-Trust Problem Appears Very Real for more.

If, in fact, the blog hosting the offensive image of Michelle Obama also hosts malware, Google’s removal of the image seems justified in light of the company’s stated policies. But, in that case, a malware warning should also be placed on the site itself in Google’s main search results. Until that happens — and perhaps even after — Google’s critics are likely to question the decision to remove this image.

While today’s episode may be a case of Google looking for an excuse to remove an image from the index, it should be said that the same exact image of the First Lady can be found on other sites and remains in Google Image Search because those sites apparently don’t meet the criteria for content removal. There are similarly offensive images of the President himself that can be found quite easily in Google Image Search, too.

According to AllThingsD the MicroHoo search deal is nearing completion and “definitive agreement” status. Speculation that the deal was in trouble started happening when the two companies failed to meet their self-imposed October 27 deadline to finalize the complex agreement. However it appears the circumstances were just as reported in the parties’ 8-K filing with the US Securities & Exchange Commission:

The Letter Agreement specified that the parties would execute Definitive Agreements by October 27, 2009, but given the complex nature of the transaction, there remain some details to be finalized. The parties are working diligently on finalizing the agreements, have made good progress to date, and have agreed to execute the agreements as expeditiously as possible . . .

On the regulatory front AllThingsD reports that “several sources said, those government approvals are now nearing completion at the Justice Department, even though the Federal Trade Commission might still ask for more assurances on privacy issues related to online advertising and consumer data.” Europe must also approve the deal.

According to the most recent comScore search market share data, the combined reach of MicroHoo search would be 27.9% vs. Google’s 65.4%. Assuming the deal goes through up next for Microsoft would be a decision about whether to attempt to buy Ask, which IAC’s Barry Diller is open to selling, and whether to bid for AOL’s search-ad business when that deal comes up for renewal in 2010.

However a MicroHoo approval would potentially make a later Ask acquisition (or maybe even an AOL deal) harder because it would reduce the number of independent search engines in the market.

Backtracking on a controversial decision earlier this year, the National Association of REALTORS® (NAR) has adopted a new policy that allows real estate professionals to have their sites — including home listings that belong to others — indexed by search engines.

The controversy reached a peak this year when the NAR agreed with a local decision in Indianapolis that said real estate agents couldn’t let Google and other search engines index the property listings on their sites if those listings belonged to other brokers/agents. In March, the Indianapolis board sent a letter to some agents that essentially called search engines “scraper” sites:

“…the National Association of REALTORS® (NAR) is in agreement with our interpretation of the policy that the above described practice of ‘indexing your Web site’ as you have called it, is a method of scraping or reproducing the data”

At their meeting this week, the NAR Board of Directors revised its policy on home listings and search engines to say that participants “are not required to prevent indexing of their Web sites by recognized search engines.”

That Realtor.org link is also interesting for its comments about the development of REALTORS® Property Resource, which many say is essentially a national search engine for property listings.

Just when you thought paid inclusion was finally dead with holdout Yahoo getting out of the space, it’s come back from the most unlikeliest of sources: Google. Below, a look at the experiment plus reexamining the FTC’s guidelines about disclosing paid ads. Does saying “Promoted Videos” on YouTube rather than “Sponsored Videos” meet these?

For those unfamiliar with paid inclusion, it is where advertisers pay to have their listings included within editorial results, rather than being listed separately from them as paid placement search ads. In paid inclusion, there’s also no guarantee that the ads will show in a particular position.

Paid inclusion is a dinosaur left over from the days when you had companies that would sell a search partner only editorial results, leaving it to that partner to outsource with someone else for paid listings. For example, Microsoft once had its search engine using editorial results from Inktomi and paid results from Overture. It is also a remnant from before the days when search ads generated so much revenue that there was no need to deal with “messy” paid inclusion.

Messy? Sure. Yahoo would tell the world how fresh and complete its index was. Yet to site owners, it would pitch paid inclusion as a way to ensure that your pages were getting regularly visited by its spider or not overlooked entirely. It’s also messy to explain to searchers that these paid listings integrated into editorial results aren’t “ads” simply because they weren’t guaranteed to rank.

Paid inclusion is so messy that Google’s founders took an extraordinary step of speaking out against it in their IPO registration document of April 2004 several times. I’ll come back to those statements, but let’s look at what’s happening on Google now

The folks over at Range Online Media spotted new ads that are integrated directly within shopping results. Below are some screenshots they also provided me:

The arrow points to the ads. Here’s another example:

Here’s a close-up of the ad integration:

I can’t see these, when I look at the same pages, such as here. That’s because it’s an experiment that Google confirmed to me is being shown only to a small number of people. These are also separate from the other Google Product Ads rolled out this month to everyone.

I asked about these being paid inclusion. In response, I was sent:

At Google, ads are always labeled to indicate that the information is sponsored. We’re currently running a test in which Product Listing Ads appear on the Google Product Search page when a user clicks to ‘Compare Prices.’ Like the product listings, these ads provide information such as prices and ratings, so when a user sorts the information, the list changes the order of both the listings and the ads. As always, the ads are labeled as advertisements, and this experiment is intended to help us understand whether this is a useful experience for our users. This feature is currently in a limited beta with a small number of U.S.-based advertisers, and as with all tests, we may make changes to our current experiment in the future.

Wow. That made me feel more than ever this was paid inclusion. See, even though there’s an ad label attached to the listings, the fact that they are integrated within editorial results themselves rather than being segregated from them is one sign. In addition, if you can sort the results, then the ads have no guaranteed placement, which again is a core element of paid inclusion.

Now let’s go back to what Google’s founders said about the practice in the IPO papers (I’ve bolded key parts):

Our search results are the best we know how to produce. They are unbiased and objective, and we do not accept payment for them or for inclusion or more frequent updating.

And:

We will do our best to provide the most relevant and useful search results possible, independent of financial incentives. Our search results will be objective and we will not accept payment for inclusion or ranking in them.

And:

Objectivity. We believe it is very important that the results users get from Google are produced with only their interests in mind. We do not accept money for search result ranking or inclusion. We do accept fees for advertising, but it does not influence how we generate our search results. The advertising is clearly marked and separated. This is similar to a newspaper, where the articles are independent of the advertising. Some of our competitors charge web sites for inclusion in their indices or for more frequent updating of pages. Inclusion and frequent updating in our index are open to all sites free of charge. We apply these principles to each of our products and services. We believe it is important for users to have access to the best available information and research, not just the information that someone pays for them to see.

And:

Froogle [the name for Google Product Search back then] enables people to easily find products for sale online…. Most online merchants are also automatically included in Froogle’s index of shopping sites. Because we do not charge merchants for inclusion in Froogle, our users can browse product categories or conduct product searches with confidence that the results we provide are relevant and unbiased. As with many of our products, Froogle displays relevant advertising separately from search results.

At best, Google could excuse the current experiment from being paid inclusion by saying that these advertisers are not being charged to be included. That if they want to be in those listings, that’s free if they put in product feeds. But paid inclusion overall was rarely pitched as a way only to be included. It was pitched as a way to guarantee fast inclusion and constant updates. And the unspoken benefit was that it put you right in the mix of the regular results.

When I spoke further with Google about the move, the company stressed that the ads all have ad disclaimers and that the testing will also look at putting the ads outside the regular results and also may not allow for sorting. What you see above isn’t final, by any measure.

Certainly the ad disclaimer helps, but as long as they’re integrated right in the regular results, with sorting, that’s paid inclusion in my book. It’s also paid inclusion according to the Federal Trade Commission, from its definition in 2002 (again, I’ve bolded the key part):

Paid inclusion can take many forms. Examples of paid inclusion include programs where the only sites listed are those that have paid; where paid sites are intermingled among non-paid sites; and where companies pay to have their Web sites or URLs reviewed more quickly, or for more frequent spidering of their Web sites or URLs, or for the review or inclusion of deeper levels of their Web sites, than is the case with non-paid sites….

In a related matter, I asked why YouTube’s “Promoted Videos” aren’t called “Sponsored Videos,” as they once were. “Sponsored” has been the search industry’s term-of-choice when it comes to indicating what’s an ad. It’s used by Google, Yahoo and Bing, and it was a word the FTC particularly seemed to like when it issued guidelines.

Google emailed me:

Whenever a Promoted Video appears on YouTube, it is marked as a ‘Promoted Video’ to indicate that it is an advertisement. This label is hyperlinked to the YouTube Glossary, which offers more information about the Promoted Videos advertising program.

OK, I knew that. But these were called “Promoted Videos” originally, then changed to “Sponsored Videos,” then changed back to Promoted, which to my ear doesn’t sound as ad-like. So why were they changed?

To that, Google noted a blog post from March saying:

We think “Promoted Videos” more accurately describes this program than “Sponsored Videos,” the original name.

I was also told that “Promoted” was determined to be more descriptive and appropriate.

Determined how? Google wouldn’t share that. So maybe there was some testing done to see if users understood that “Promoted” better explained that these are ads. Or maybe a product team decided “Promoted” got a better clickthrough than “Sponsored” because people did NOT realize these were ads.

Google has massively ramped up where and how it shows ads over the past year. As the company continues to grow, it also has people without a firm history of knowing why ads are separated from search results and why certain words have been used to indicate what’s an ad and what’s not. Calling something “Promoted” that’s an ad in one part of Google while it’s “Sponsored” in another isn’t consistent and generates confusion. Mixing ads into editorial results also potentially generates confusion. Neither makes me feel particular good, but hey, maybe that’s just me.

There’s a report from Reuters this morning that Microsoft and Yahoo are considering expanding the scope of their search deal “outside the United States”:

Microsoft Corp Chief Executive Steve Ballmer said on Thursday the company could look to extend its search engine partnership with Yahoo outside the United States, if it gets regulatory approval.

Wasn’t that already the intention? I thought it was a global deal already. European regulators wouldn’t be considering it if it didn’t apply to their markets; they wouldn’t have jurisdiction. So I guess I’m a bit confused I guess.

Regardless, if either the EU or US Department of Justice disapproves the deal it will kill the whole thing globally in all likelihood. I would expect approval although it’s also possible that limitations and conditions could be attached by regulators.

Reportedly Barry Diller, CEO of IAC Corp., wants to sell Ask — perhaps feeling he’s ridden the wave as far as he can (with some disappointment). If so, the most likely buyer would be Microsoft according to widespread speculation. It would allow Microsoft to grab some incremental but meaningful share of the market. The question would be at what price?

Timing is huge here. If Ying/MicroHoo were to gain approval from regulators, or the appearance of forthcoming approval were strong, the value of Ask to Microsoft is less than if the Yahoo deal were not to go through. In the latter case Diller could exact a higher price than in the former. There could be other buyers out there for Ask (e.g., News Corp., Comcast?) but Microsoft is the one with more to gain from adding scale.

According to comScore, Ask maintains a small but meaningful core following:

That respresents 718 million queries in September, according to the metrics firm. However iCrossing recently said it has seen referrals to its clients’ sites from Ask drop “precipitously.”

Postscript: The following was a clarification that I received in email from a Microsoft spokesperson:

[T]he Microsoft-Yahoo! agreement does apply outside the United States. As it’s written, it must be approved by regulators in the U.S. and Europe in order to go into effect. As soon as those regulators give approval, the agreement goes into effect worldwide, although implementation in a specific country is postponed if regulatory approval is required there and it is not yet obtained. But that will not postpone implementation in other places.

Google has launched a new privacy dashboard — technically just called Google Dashboard — that gives users quicker access to, and more control over, the personal information stored in Google’s databases. The dashboard is a one-stop shop for managing this data and the settings that are associated with the Google products you use when signed in to your Google account.

“We recognize how important our users’ trust is, so we’re looking for ways to be more transparent,” says Shuman Ghosemajumder, Google’s Business Product Manager for Trust & Safety. “Over the last 11 years we’ve launched a lot of products, so we wanted to provide more transparency for people using those products.”

How to access Google Dashboard

Google Dashboard can be reached by going to www.google.com/dashboard or by going to your Google Account page. You’ll see a link under Personal Settings that says “View data stored with this account.”

You’ll have to be logged in to your Google account first and, because the information in Google Dashboard is sensitive, Google requires a second login before you can access it.

What’s included in Google Dashboard

At the beginning, not all Google products are included in Google Dashboard. Ghosemajumder says there were some “last-minute technical issues” that kept some products out of Dashboard. Google hopes to add those within the next couple weeks. For now, here are lists of what’s in and what’s not:

Included: Account & Profile, Web history, Gmail, Docs, Calendar, YouTube, Blogger, iGoogle, Latitude, Reader, Talk, Health, Orkut, Picasa, Shopping List, Voice, Contacts, Alerts, Finance, Friend Connect, Tasks, Custom search engines, Mobile Sync

Not included: Checkout, Google Video, Groups, SideWiki, SearchWiki, Analytics, AdWords, AdSense, 3D Warehouse, Book Search, Sites, MyMaps, Base, Code, Moderator, PowerMeter, Feed Burner.

As Google launches new products in the future, Ghosemajumder says they’ll be added to Dashboard, too.

How Google Dashboard works

The dashboard lists all of the Google products that are associated with your account and shows different bits of data related to your use of each product. If you have a Gmail account, the dashboard shows information about your Inbox, Sent mail, Chat history, and more. If you use iGoogle, you’ll see how many gadgets are installed. All of the data in the Dashboard is considered private and only viewable by you, except in cases where you’ve elected to share data with others; a small “friends” icon will appear to indicate that.

More importantly, next to all this data are links to manage it. Gmail users will see links such as “Manage chat history” and “Manage HTTPS settings.” Google Docs users will see a “Manage documents” links. Ghosemajumder says that none of these management links are new. It’s all about organizing the user’s ability to see and control the data that gets shared with Google when using their products. Rather than needing to visit each Google product individually, users can manage everything from this single console.

If you use Google products while not logged in to your Google account, the data associated with those uses won’t show up in Dashboard.

Google Dashboard is currently available in 17 languages, and the company hopes to expand that to 40 languages soon.

Final thoughts

All of the major search engines face privacy issues, but it seems that Google is put under the microscope the most due to its size, success, and perhaps its ambition, too. Google clashes with governments over YouTube, over data retention, and even the idea that Google Maps helps terrorists. It clashes with regular Joes over Street View. It clashes with privacy groups over Google Latitude. The list goes on and on.

In September, Google announced its Data Liberation Front – a team focused on making it easy for users to move data in and out of Google products. The Google Dashboard is a sister and almost a prequel to that effort — one that helps users see and manage the data Google that Google has about them. It represents a step toward appeasing some of its critics and preventing some of these privacy clashes. The question is … will Google’s critics feel that it’s a big enough step?

Note From Danny Sullivan: I’m thrilled to see this step and look forward to seeing how it develops further. My Anonymizing Google’s Server Log Data — How’s It Going? post from last year looks at privacy issues at Google and the difficulty of knowing exactly what they have stored. That was a follow-up to Google Responds To EU: Cutting Raw Log Retention Time; Reconsidering Cookie Expiration, in 2007, which also looked at privacy pain points. In that article, we got our first hint that a dashboard might be coming from Google:

Figuring out where all my data resides and how to kill it is a pain — at Google or Microsoft or Yahoo, for that matter. John Battelle had a good suggestion back in early 2006 for a sort of private data control panel that could show you exactly what was stored where and put the user in control:

“I bet 95% of the public will never edit, or even view the data more than once. But the sense that the control panel is there, just in case, will be invaluable to establishing trust.”

We could use that more than ever. Google especially could use that, if it wants to stop the privacy attacks or at least stem them. How about it? I asked Google’s global privacy counsel Peter Fleischer about this yesterday, when talking to him about the Privacy International survey.

“We’re thinking hard internally along the digital dashboard-type of approach. Is there a way to give users a dashboard and visibility to all these elements and give them control,” he said. “It would be hugely complicated to build, but in terms of that vision, I completely share it, and we’re having deep discussions about it.”

So kudos also to John Battelle. His idea of a control panel dashboard, rather than a million settings and cryptic privacy policies, becomes a reality.

Facebook has been in an ongoing fight against spam and yesterday announced a significant victory in court. The company said it had obtained an eye-popping $711 million judgment against Spam King Sanford Wallace who had had posted unwanted messages on Facebook users’ Walls. Wallace, who is reportedly bankrupt may also face time in the big house. According to the Facebook blog:

While we don’t expect to receive the vast majority of the award, we hope that this will act as a continued deterrent against these criminals. Most notably, the judge referred Wallace to the U.S. Attorney’s Office with a request that Wallace be prosecuted for criminal contempt, which means that in addition to the judgment, he now faces possible jail time.

Late last year Facebook won an even larger, $873 million judgment against Canadian spammer, Adam Guerbuez and Atlantis Blue Capital.

Facebook implores users to identify and report spammers to the company. Keeping Facebook spam-free helps users but it’s equally critical for the continued health and usage of Facebook more broadly.

Oh, the irony: The People’s Daily, the main newspaper of China’s Communist Party, says Google censored its web site by adding a malware warning to search result listings for the newspaper’s book section.

The paper says the malware warning appeared after it ran an article about a Chinese group that has suggested Google’s book search settlement might violate the rights of Chinese authors. The paper says the malware warning appeared for three days, and claimed that its book section was “maliciously blocked by Google.”

Google called the claims “absolutely incorrect” and pointed out that its malware warnings are generated automatically and without human involvement.

It’s all ironic, of course, due to the long-running battle between Google and China over censorship issues. Usually, though, it’s Google (and others) accusing the Chinese government of censorship, not the other way around. Or, as the Inquirer calls it, this is a case of “wok calls kettle black.”

Is Twitter allowing search engines access to protected tweets or not? Not, Twitter tells me, though the company probably needs to do a bit more to prevent this type of confusion in the future.

The LA Times reported yesterday about a “Twitter hole” that it believed allowed Google special access to protected tweets, tweets made from Twitter accounts where owners have deliberately chosen not to have their tweets be made public.

Not so, said TechCrunch. The so-called protected tweets that the LA Times was finding in Google looked to be those made from before particular account holders locked down their accounts.

I checked with Twitter and got back the official word from their press office:

The TechCrunch article seems to sum up the confusion pretty well. It seems that the LA Times piece references tweets that were public but later the user protected the account, thus all subsequent tweets are private along with the profile. The tweets prior to that time cannot be un-cached.

Google has not been given a key to the castle…so to speak.

I’m good with this answer except for the word I’ve bolded — that formerly public tweets cannot be uncached. That’s incorrect.

Let’s take an example. Let’s assume you started your Twitter account in March. You started tweeting publicly, then in July decided to be private. Twitter doesn’t try to protect any of your past tweets. In fact, it’s pretty clear about this in its help page on the topic:

If you have a public account and you protect it, all updates after the time of protection will be protected. Your profile will only be visible to approved followers, and existing followers will not be affected.

Please note that tweets from protected profiles will not appear in search results. People will still be able to find your account using the Find People search tool but only people you’ve approved to follow your account will be able to see your tweets. Also note that any tweets posted while your profile is private will remain private indefinitely, and tweets posted while your account is public will remain public indefinitely

But Twitter could try to protect those formerly public tweets. As best I can tell, if you lock down an account, Twitter does make ALL tweets (formerly public or not) inaccessible to everyone accept those the account holder has authorized to see them. That includes search engines like Google or a Twitter-specific search engine like Topsy.

Well, if Google can’t get in to tweets after an account has been protected, why does it show some? And why does Twitter say this will happen?

Google seems to rely on the last information for a tweet that it could see. So you tweeted something in March. Google sees the tweet and records it. If in August, you protect your account. Google tries to revisit your tweets as it does with any web page, to make sure it has fresh information. It can’t get to any of your tweets now.

The ones from August, it never saw them, since they were never public — so it doesn’t list them.

That tweet in March? It keeps showing the information from the last time it saw it. And apparently, it will keep doing this for weeks or months.

Google didn’t send me a comment about this (I did ask, and I might get one later today). But that’s just how I know Google works and can see it specifically working with some protected tweets I investigated today.

As for Topsy, they told me:

Topsy only displays tweets that were once public. The refresh button will make them vanish if the account is now private.

Back to Google. Eventually it should update its old copy of the tweet with what it currently shows to non-authorized visitors, a message that says “This person has protected their tweets” (you can see this for millions of people on Google now).

Twitter could speed that process along by explicitly blocking tweets from a protected account with a meta robots tag configured to remove the page from the index entirely and from cached copies being allowed (the NOINDEX, NOARCHIVE commands).

That wouldn’t guarantee that formerly public tweets are all taken private, of course. Once something’s put out on the public web, it’s very difficult to pull it back. But it could help and seems an easy enough change to do.

If you have a protected account, also keep in mind that those who follow you might retweet what you tweet to the world. If you’re that worried, make sure you pick your followers carefully and regularly keep them informed that you don’t want things retweeted. Otherwise, be prepared for your private tweets to leak out.

For more about search and tweets, see my What Is Real Time Search? Definitions & Players post which cover some ways to make use of Google and its search options feature to drill-down into tweets.