• Users of AOL’s web search engine recently discovered that AOL publicly released their search histories. Released without any directly-identifying personal information, the sample was intended for use of researchers. Nonetheless, the identity of some individual users could be deduced, as demonstrated by the efforts of The New York Times and others, who were able to use the data to track down AOL users.

• Some directors of Hewlett-Packard learned the company launched an investigation into their contacts with business reporters, which may have included HP obtaining the directors’ phone records and even covert surveillance.

• Some users of Craigslist, who had responded to a personals ad, were shocked to find their responses posted on the Web. The individual who posted the ad apparently did so with the intention of embarrassing the responders. Many fell into the trap, revealing personal information in their responses.

• Some members of MySpace and other online communities are finding that employers, schools and others have been reviewing their profiles with results never expected when the profiles were posted.

Whether it is search histories, phone records, personal emails or online profiles, our networked world constantly invites each of us to reveal ourselves to others. But every revelation entails risk.

The law is offered as a way to protect individuals. For example, Craigslist users might (or might not, depending on one’s interpretation of the law) be able to sue the advertiser for maliciously revealing private facts in public. Or AOL users might be able to sue if AOL violated its privacy policy in revealing users’ search data.

If existing law is not seen as adequate to protect privacy, then stricter laws may be in the offing. Yet the law is a blunt instrument in this case. With a subject as nuanced and as personal as privacy, determining what should be protected and when may be impossible other than in the broadest terms. The resulting laws almost certainly will either protect too much or too little, but will never be able to protect only that which individuals want protected.

We are all familiar with the theory of six degrees of separation, which postulates that any two people are connected to each other by no more than six steps. The theory has not changed since Karinthy Frigyes wrote about it in the 1920s, and presumably, while never proven conclusively, has always been true.

Yet we feel the theory’s effects more strongly today, because, in a fully networked society, the connections among us, once obscure, have become so clear. Each bit of personal information we reveal becomes part of the net around us. We have lost a healthy sense of separation from others in the world. A mechanism is needed to create a buffer to the world. Pseudonymous identities could fill that need and allow us to recapture our lost separation.

KinderStart has recently suffered a set back in its litigation. The district judge determined that KinderStart’s complaint failed to validly describe a claim against Google and dismissed it. However, the judge has left open the opportunity for KinderStart to amend its complaint, and KinderStart may do so. In particular, the district court appears to believe that, correctly stated, KinderStart could have an valid claim against Google for defamation.

Defamation is a spoken or written false statement of fact that negatively reflects on a person’s or business’ reputation. KinderStart believes that Google has falsely assigned it a low PageRank and that the low PageRank hurts KinderStart’s business reputation. To prove defamation, KinderStart will have to show that Google’s PageRanks are factual statements, and that Google has falsely stated KinderStart’s PageRank.

Interestingly, Google does not appear to have directly denied the crux of KinderStart’s claim. Google’s defense would appear to rely on a distinction between statements of fact and expressions of opinion. While a false statement of fact can be defamatory, an expression of opinion cannot. Opinions by their nature cannot be false. They are simply an expression of the speaker’s view on a subject. While a negative opinion can be harmful to its subject, the law deems them less dangerous than a false statement of fact — that is a lie. Only lies can support a claim for defamation.

While KinderStart maintains that its PageRank is a mathematically derived fact, which Google then lies about. Google asserts that, although they may be generated automatically, its PageRanks represent only Google’s opinion of a website. Google’s opinions about websites are coded into its algorithms, but this does not make the search results any more factual.

According to Google’s logic, its negative opinion about KinderStart, which it has expressed through its PageRank, cannot be found to be defamatory. Google’s position would be that it is not lying about KinderStart or KinderStart’s PageRank, it is simply expressing its negative view of the value of the KinderStart’s website. Even if KinderStart’s case does not go forward, Google’s defense is intriguing in its implications.

Google promotes its search engine heavily on the basis of its superior search algorithms. Indeed, its search results are generally so good that we have come to believe only a computer could produce such useful results. While others have tried to manually index the best of the web — Yahoo! started that way — users have come to see manual indexing as inferior and inevitably missing valuable sites. Only computers, and for now, only Google’s computers, appear to be able to accurately index the web.

But what does it mean if Google is playing with its results? Google’s own reputation is at stake here. It’s easy to see how a manual indexer’s own pre-conceived notions or prejudices could skew an index. It’s harder to see how a search engine’s algorithms could be programmed to do so, but KinderStart’s case may be a good example.

It may very well be that Google has not targeted KinderStart directly. It is not difficult to conceive that Google’s search engine is programmed to automatically identify other search sites. Would it be a surprise or even necessarily nefarious for Google to believe that other search websites are inferior to its own? I would suggest that if Google didn’t believe in its own superiority, it would need to drastically rethink its own business model and take steps to fix its search engine. So it should not be a true surprise if Google’s search engine algorithms automatically give KinderStart and other search engines low rankings.

Nonetheless, defamatory or not, it doesn’t feel right for Google to be penalizing its competitor’s websites, even if Google can genuinely make the case that it believes those sites to be inferior to its own. If KinderStart pursues its case, it will be interesting to see if Google can succeed in defending the low rankings it assigns to its competitors without injuring its own reputation for delivering search results upon which users can rely.

For law enforcement, our digital age is a double-edge sword. On the one hand, digital communication has made it easier to engage in a variety of criminal activities. Whether it’s terrorists planning an attack or college students illegally sharing music, the Internet has made crime cheap and easy. Even worse, digital technology has made it harder for law enforcement to track down the source of illegal activity.

Digital communications are harder to monitor, and it is easy for criminal enterprises to operate offshore where US law enforcement efforts are hampered by a lack of jurisdiction. Despite concerted effort, law enforcement appears not to have made much of a dent on — let alone stamp out — criminal activity in cyberspace.

On the other hand, while real-time tracking may be more difficult, every digital communication leaves behind a record in the form of server logs. When tied to customer records, the information in server logs can be used by law enforcement to track the source of illegal activity. Such information may be even more valuable when aggregated and subjected to data-mining. Patterns in the data may reveal criminal enterprise that would otherwise operate undetected. However, for the government to take advantage of the data generated by electronic commerce, it has to have access to the data, and the more data, the better.

The growing government appetite for data appears voracious. New reports of government programs to gather data seem to appear daily. To name a few familiar items: the NSA is reported to be monitoring international communications; at the request of the government, major telecos have voluntarily turned over call records; and over the objection of the European Union, the TSA demands passenger information on international flights in return for landing rights.

Now, we learn that the FBI and the Justice Department are turning their sights on the data logs of Web site operators. Such data can already be obtained from ISP’s by court order, but law enforcement is apparently concerned that Internet companies are not keeping enough information long enough. The government is exploring whether it wants a law that would require the retention of web-surfing records and email transmission data for some period of time — perhaps two years. Most companies retain such data for much shorter periods.

Although the government position appears to be a modest proposal, it is not. At the least it would mandate the storage of data much longer that any private company would deem necessary. In addition, it would likely require the specification of data that needed to be kept (and perhaps of additional data that would need to be collected) and require companies to take steps to ensure the data could be easily searched and retrieved in response to government subpoenas. In effect, the law, if passed, would mandate that private industry create a gigantic archive of Internet activity.

It’s clear that law enforcement can use, and has used, data held by private companies to effectively combat crime. But it’s also clear that there is no limit to the amount of data to which government would like access. Viewed purely from law enforcement’s perspective, all data should be retained forever.

It’s not so clear though that law enforcement’s is the only worthwhile perspective. At the very least, this proposal would impose significant costs on the Internet industry. Compliance would be costly, particularly for smaller companies. And storage, while getting cheaper, will never be free.

Perhaps even more important in a society that calls itself free, the concept that a government should have unlimited access to information about its citizens needs to be viewed skeptically. It is time for the US to publicly debate and then implement a thoughtful approach to personal information and what it can be used for. This country needs a balanced policy that addresses both the needs of law enforcement and the right of citizens to go about their business without wondering who is monitoring their activities.

Microsoft is making MSN Search the default search service for IE7. Microsoft denies that this default setting is unfair to MSN’s competitors, stating that the search box can be easily redirected by consumers to use other search engines.

Google and Yahoo! though appear to be unhappy with Microsoft’s move. Both have made public statements that appear to be directed against Microsoft’s browser plans. Google has gone so far as to announce that it has spoken recently about the matter with the U.S. Justice Department.

What Microsoft does with Internet Explorer is important, of course, because of Microsoft’s huge share of the browser market — variously estimated at around 80% to 85%. But, by itself, browser market share has no real value. The value is in the browser as gateway. With a keyword search-generated advertising market of, according to the Interactive Advertising Bureau, over $5 billion for 2005, and growing, on the other side of the search box gate, it’s not surprising to see Microsoft jockeying for advantage. But so are its rivals.

In the fight over advertising revenues, the real fight, the numbers are a bit unusual. Suddenly, Microsoft isn’t in its normal position of unassailable dominance. In fact, with, according to comScore, a March 2006 search engine market share of only 13.2%, third place to Google’s 42.7% and Yahoo!’s 28.0%, Microsoft’s MSN looks almost sad.

With real money at stake this time, the new browser wars undoubtedly will be fought on all fronts — legal, technical and marketing. Despite Google’s early salvos concerning antitrust, the courts may not be the primary theater this time around. Google and it’s allies are sure to have learned from the ultimate failure of Netscape’s campaign, that victory in court, because it can take so long and be so ultimately indecisive, can be truly Phyrric. The new browser war is likely to be most fought by other means.

The technical field too shapes up to be interesting. Google and Yahoo! may be able to make it easier for its customers to replace MSN as IE7′s default search engine. Or maybe Google, as is so often rumored, may actually launch a rival web browser. But the technical battle too is likely to be a sideshow.

The real battle will be in the market, with at least three players, Microsoft, Google and Yahoo!, having the resources to put up serious fights. We can expect aggressive marketing campaigns both on and off the Net. With many web browsers loaded on new PCs by their manufacturers who can themselves change the default search engine on machines they ship, we can expect major bidding for the right to be Dell’s or Hewlett-Packard’s featured search engine. Search engine advertising rates almost certainly will be affected too, with fluctuating search engine market shares likely driving down rates.

The new browser war is good news for consumers and for advertisers. A vigorous contest should lead to increased innovation, increased choice and lowered prices. May the war be protracted and bloody. Let’s just hope nobody wins.

It is too early to predict whether this new law will ever be passed and go into effect, but it is clear that the public, at least as perceived by legislators from conservative states, is interested in laws like this. The Internet is perceived as a potentially dangerous place for kids and even adults. Effective or not, laws regulating the availability of adult content appear to many to make the Internet.

The new CSKA, if enacted, would require the creation of a new top-level domain, such as .XXX, for adult oriented web sites. Unlike prior voluntary efforts to create an adult domain, under CSKA all web sites covered by the law would be required to move to the new domain. By segregating the Internet, it is intended that the job of content filterers, such as CyberPatrol or NetNanny, would be made easier. Also, at least in theory, it would be less unlikely for unwilling Internet users to accidentally stumble on material they find objectionable.

CSKA immediately raises the constitutional free speech question. Any law that will have an effect on public access to content online must be written carefully to affect a worthwhile public purpose, while not putting unnecessary burdens on free speech. CSKA must, therefore, protect children while not unnecessarily burdening adult access to adult content.

Lawmakers’ records in passing laws that meet constitutional muster have been mixed. CSKA is intended to cover more than obscene content and child pornography, two areas where courts have generally upheld laws. Like CIPA (the Children’s Internet Protection Act, which attempted to require libraries to block access to material harmful to minors), and COPA (the Child Online Protection Act, which attempted to regulate web sites offering materials harmful to minors), CSKA would cover sites offering material that is “harmful to minors.”

COPA got into trouble and was found unconstitutional largely because the harmful to minors definition covered too much material given the statute’s perceived heavy burden on web site operators to obtain age-verification from all visitors. It failed to strike the right balance. CIPA revised the definition of harmful to minors, but it too has been struck down partially by one court. Again the definition of content covered by the law was too broad when weighed against the burden on adult access to adult content imposed by the law’s requirement that libraries block access to covered content.

Is CSKA also then doomed by its reliance on the “harmful to minors” standard? Possibly not. COPA and CIPA may not be the best laws to compare to CSKA. A better comparison may be made to the CAN-SPAM Act, which regulates sexually oriented email advertising. The standard in CAN-SPAM turns out to be even broader than CSKA, covering any material that is “sexually-oriented.” Nonetheless, while COPA, CIPA and earlier laws aimed at adult online content were the center of constitutional storms, there have been no serious challenges to the constitutionality of CAN-SPAM.

Two reasons make CAN-SPAM less controversial, and those same reasons may apply to CSKA. First, the burden on speech imposed by CAN-SPAM is arguably lower than with other laws. Advertisers are basically only required to label their emails “sexually explicit.” Access to the content in the emails is not blocked, but the labeling makes it easier for spam blockers and recipients to filter out adult materials. CSKA’s burden is similarly low. In a sense, it would require only that web sites be “labeled” by using the .XXX domain. No one’s access to the sites would actually be blocked or made more difficult by the law.

Second, and more importantly, the Internet industry may discover that, whatever its constitutionality, CSKA, like CAN-SPAM, may turn out to be useful regulation. CAN-SPAM benefits adult sites by clearly spelling out how they can legally advertise by email, removing the uncertainty that existed prior to its passage. The email advertising industry benefits as a whole by segregating out adult content advertising. Spam may still not be welcome, but the fact that recipients can more easily avoid one of its most objectionable categories, makes spam in general somewhat less objectionable. The Internet industry as a whole may find CSKA, or some other law like it, is just as welcome.

There is something about the idea of charging for sending email, even spam that seems to run counter to the ethos of the Internet. Charging for email erects a barrier to access in a medium that from its start has embraced an open structure. Email charges will feel like a tax, increasing the cost of interacting in what has so far been an increasingly low-cost market of ideas and commerce. Legitimate concerns are being voiced about free speech and market place economics. Ii is a fair question whether email fees will be in the public interest.

In its short life, the Internet has quickly proven itself to be a boon to free speech. Email particularly serves as a cheap and efficient method for people to voice opinions, assemble and push for change. Beginning with the 2004 presidential campaign, we’ve seen how effective the Internet has been as a fundraising and mobilization tool. It’s no wonder that repressive regimes from China to Saudi Arabia view an open Internet as a threat. What will be the effect of email fees on grass roots organizations?

At the same time, the Internet has been an engine for economic growth. Despite the dotcom crash, the Internet’s effect has been to increase jobs and economic growth around the world. Part of the Internet’s ability to stimulate new business is the way in which it lowers transaction costs. Many online businesses have benefited from the low costs associated with online transactions and in particular email. How will future start ups and low-margin businesses be effected by higher email costs?

Despite the public’s vital interest in these issues, it has no real voice on them. Although email fees will likely have an effect on free speech, the ISPs as private entities are under no Constitutional or other obligation to run an open forum for speech. And AOL and Yahoo! are certainly under no obligation to foster other companies’ businesses, whatever the benefit to the economy.

Theoretically, the public can vote with its feet, deserting service providers who charge fees. But the reality is that switching service providers is not a trivial matter, Switching requires users to give up their email addresses and perhaps bundled services that they depend on. If email fees are adopted widely, there may not even be comparable services without email fees available.

In reality, there is nothing really to stop AOL, Yahoo and other Internet providers from charging for every email. But shouldn’t there be? Water, power, telephone. These are all regulated utilities. So far the Internet has not seen such regulation. But has the time come for the Internet to be treated like a utility and regulated like one too?

In the past couple of decades, regulation has become a sort of dirty word. And indeed, there is always a danger of misguided regulations to do harm, rather than the intended good. But regulation is a society’s way to ensure that public services meet public needs. Whether it is to ensure the quality of drinking water or to ensure every household has access to an affordable telephone, utility regulation requires services to meet the public interest, even when the service providers are in the private sector.

The Internet is a free and open market. But it is also a public service. So far, we’ve been lucky that Adam Smith’s “invisible hand” has led us in the right direction, but we may not always be so lucky. There will likely come a time when society will have to take a more active role in ensuring that the Internet is operated in the public interest. AOL and Yahoo’s announcements may suggest that the time has come.

Almost as soon as any new technology has arrived on the Internet, marketers have been quick to exploit it — often in unsavory of ways. Email led to spam. Cookies led to privacy-invasive consumer tracking. Downloadable software toolbars and utilities led to adware. Javascript in web browsers led to pop-up ads.

Each time we’ve seen the same cycle repeat itself. The initial marketers jumping on a new technology operate in a gray area somewhere between public outrage and downright illegality. A backlash ensues in which every available avenue, such as blocking technology, legal challenges and community pressure, is used in an attempt to stamp out the offending marketing. And inevitably all such avenues fail. Instead over time the Internet community comes to tolerate the marketing. It becomes just a background nuisance. A cost of being online. Whereupon, almost magically, the previously deplored marketing technique becomes legitimate.

Of course, it’s inevitable that each new advertising technique, if it generates sales, will eventually become legitimate. We can castigate the marketers who first brought us these methods, but they’ve actually performed a service. If the advertising techniques they pioneered can generate sales, despite the annoyance and even enmity they engender among consumers, we know the techniques must be pretty effective. Perhaps it is cynical to say, but anything that effective simply cannot remain outlaw for long.