Monday, October 30, 2006

Google Custom Search and CDA 230

I questioned aloud the other day whether Google's new Custom Search Engine (CSE) service will make users similarly liable as oft-sued Google over its search engine. Here are some thoughts on CSE and CDA 230.

The technology behind what is going on is key to any lawsuit involving the Internet, so it's important to be clear about what is happening when a person uses CSE to build their own search engine. So, how does Google custom search work? Take my Google Copyright Engine (GCE), for example. The CSE service is nothing more than a front end to Google. I have created a page, with Google's help, onto which I have placed a form for users to enter search queries. A person interested in learning about Google's legal affairs will enter something into this form and that info will be sent from my server to Google. Google will then take that info and, based on how I have configured my engine, will calculate the results and display them. In my case, my GCE displays the results as part of my GCE homepage hosted by Google. Another option is to have the search results displayed directly on a page within Google Copyright Blog, but I don't think Blogger supports that option (though Blogger Beta probably does).

As one can see, I don't have any control of what is included in the Google database nor do I have control over Google's PageRank. This fact should preclude my being liable in suits such as KinderStart's, which is suing over being demoted in Google's search results. But what about what actually does show up in Google's rankings?

Fortunately, section 230 of the Communications Decency Act should provide a wealth of protection for me and other Google CSE users. CDA 230(c) specifically provides that:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Frequently raised in the online defamation context, this provision generally grants immunity to those sites/services that link to or reproduce defamatory material that originated with another source. Whether or not a "Google Bomb" can be considered defamatory (the ADL says no because Google rankings are automated), my use of CSE won't make me liable for Google's search results because my GCE is providing information from another information content provider. Julie Hilden provides a compelling argument for why you can't sue Google for these kinds of things. But the extent to which CDA 230 covers more than defamation and similar speech torts is unclear. In one case, Randall Stoner v. eBay, eBay was held immune under CDA 230 for the actions of users selling bootleg tapes, but a copyright claim was not made by the plaintiff.

The issue of liability gets trickier when looking at the level of customization that CSE offers. Google's CSE allows users to add or exclude entire websites, parts of websites, or individual pages into their CSEs. Users are also able to calibrate their engines to favor certain results by specifying certain keywords that will provide a custom bias to what results are returned. While PageRank is still relevant in all of this, CSE offers a level of customization that may override much of Google's relevance calculations.

That Google search results are displayed as part of an automated system goes a long way in arguing that Google is not responsible for what gets displayed as a relevant search result, as the ADL has said. Google itself hasn't divulged the extent to which it manually edits its rankings, but it does reserve the right to under its Terms of Service. For Google, the more it is seen as editing it's results, the less it is providing information from other providers, thus coming closer to being an information provider itself under CDA 230.

At a certain point, the question might become whether my GCE is sufficiently customized and biased towards certain results that it is no longer automatic nor relying on Google enough to warrant protection under CDA 230. If my GCE, for instance, is biased to return one of my law professor's profiles as the top result when a user searches for "beats his wife" or "notorious pedophile," and that result does not occur in Google's standard rankings, I could be in trouble for providing that information myself. Automation is probably not a good defense if the a CSE is automated to be defamatory.

Lastly, it's always worth noting what the Terms of Service say for any online service. Few people actually read these, whether because they're lazy or realize their lack of bargaining power and see their only other option is to not use the service. The Custom Search Engine Terms of Service offer some interesting tidbits. Section 1.4 on Appropriate Conduct is worth close reading, especially this:
(n) engage in any action or practice that reflects poorly on Google or otherwise disparages or devalues Google's reputation or goodwill. Further, the Site [where the CSE code is placed] shall not contain any pornographic, hate-related or violent content or contain any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, Service policies, or any third party rights.
When read with the Indemnification clause in Section 5 [you will indemnify, defend, and hold Google harmless in the event of a lawsuit against Google stemming from a breach of the Terms], it would suggest that a CSE result that defames, or otherwise results in a lawsuit, makes the CSE user wholly liable. It could be argued that this combination of clauses prohibits a white-supremacist website from putting the blame on Google's automatic results if a lawsuit challenges the site's "HateTheJews" CSE. That's an extreme case, but the issue would be the same for a child protection site that creates a CSE to scour the Internet for info on pedophiles and returns a false positive on someone. If a lawsuit is brought under "any applicable law," the site providing the CSE is obliged to indemnify Google.

As an aside, I would also point out CSE's ToS section 1.5 on Exclusivity, stating that by using Google CSE the site owner agrees that "Google will be the exclusive provider of Internet search services on the Site."

CDA 230 only addresses defamation and other similar speech torts, a type of case that Google faces rarely compared to copyright cases. At some point soon I will address how DMCA 512 relates to Google CSE.
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Blogger CSE Links said...

If you are interested in publicising your CSE you may want to be an early bird submitter at our CSE links directory at - your submission will include as long a description of your CSE as you wish together with relevant keyword lists, both of which you will be entitled to edit and keep up to date if you register as an Editor. You can also add new CSEs as you build them. All Editors will also have permission to rate and comment on other CSEs thereby constantly improving the overall quality of our visitors' experience. The site will officially go live on Thursday.

10:37 AM  

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