Google’s wanton “wardriving,” i.e. detecting, accessing, and recording residential WiFi networks in 30 countries for over three years, was not simply a “mistake,” “inadvertent,” or an “accident” as the Google’s PR machine has spun it. The evidence to the contrary is overwhelming to anyone who bothers to examine it closely.
- Google’s wanton wardriving was either: gross incompetence/negligence or wrongdoing.
- Government investigators must determine for themselves via subpoena, whether or not anyone at Google, in a supervisory or management position, knew that this private “payload” data was being collected, and whether or not this private data had been accessed, copied, analyzed, or used by Google in any way.
The case for why Google’s wanton wardriving is more than just a “mistake.”
I. Identifying the questionable practice: “Wardriving”
It is obvious that the media and regulators have only scratched the surface of this problem because none have even researched the practice enough to use the appropriate dictionary term, “wardriving,” to describe what Google has been doing in 30 countries for over three years.
- While Google will try and characterize “war-driving” as a benign practice with good purposes, much like many try to characterize p2p filesharing as benign, the cold reality is that wardriving is a common practice of hackers and cybercrooks to find and exploit peoples’ vulnerabilities so that they can more efficiently defraud them with phishing and other scams.
- The more government officials learn about wardriving the more horrified they will become that Google was able to secretly collect, right beneath their noses, what constitutes the world’s largest and most complete map of which Internet users around the world are most vulnerable to being hacked, taken advantage of, or harmed.
- Simply, Google created a dream “IP” phone book/map for cybercrooks and/or spy agencies to potentially target.
- The risk that this global “easy target” list could fall into the wrong hands is not theoretical.
- Cybercrook access: Google’s “crown jewel” and most sensitive security system, its password access control computer code (Gaia), was was stolen by hackers/intruders, per John Markoff’s important investigative journalism in the New York Times.
- The most troubling part of this massive Google security failure is that Google cannot guarantee that this 600 gigabits of wardriving data was not breached, or if the intruders were able to secretly install “backdoor” access to Google’s “big table” omni-database for convenient access in the future. (See “Security is Google’s Achilles Heel” series.)
- NSA spy access: Google reportedly is partnering with the top U.S. spy agency, NSA, after the big China-Google cyberbreach, per Ellen Nakeshima’s front page scoop in the Washington Post.
- The other 29 foreign countries which Google systematically wardrived, now must be wondering which of their government or other sensitive personnel “targets” have been identified as vulnerable to hacking by Google and potentially the NSA.
- Google condoning shady behavior: Look and see how many Google links and YouTube videos show the “how to” hack networks and computers.
- Cybercrook access: Google’s “crown jewel” and most sensitive security system, its password access control computer code (Gaia), was was stolen by hackers/intruders, per John Markoff’s important investigative journalism in the New York Times.
II. Gross incompetence as a defense?
For Google to prove that this systematic wardriving was inadvertent or accidental, Google essentially has to plead gross incompetence. This is not an easy pill to swallow for the world’s #1 brand that depends on users believing that Google is sincere and competent in protecting their privacy and security when using Google.
- Google has proven to be culturally averse to accountability and internal controls as I have copiously documented on my sister site www.GoogleMonitor.com under the “accountability” tab.
- Erik Sherman of BNet cuts to the quick here with his outstanding analysis of how Google’s claim of a “mistake” is simply not credible. He asks about whether or not Google’s code was: documented; supervised; supervised competently; overseen by management; etc.
- It is not credible that Google, the world’s leading crawler and organizer of information could have unknown, and unmanaged code on all its StreetView vehicles in 30 countries… that could go undetected for over 3 three years of operations and analysis by the hundreds of Googlers involved in StreetView… who were regularly vacuuming up vastly more, and qualitatively and quantitatively different, kinds of WiFi data than it was intended to accumulate… and no one else was involved but the lone orginal software developer that made this solitary lasting “mistake?”
- To believe that we have to believe that no one at Google ever cross-checks, tests, understands, or reviews Google’s original code!
- If Google is being truthful, the staggering list of supervisory, management, privacy, security, and internal controls breakdowns Google would have to admit to would be tantamount to admitting that the world’s #1 repository of the world’s private information has no systemic integrity.
- It is also highly suspicious that if Google truly cares about privacy and safeguarding private data, why has there been no disclosure or reports of a single Google employee that was reprimanded, reassigned or fired over any of Google’s serial privacy scandals: Gmail; Google search; Google Earth; Street View; Latitude Geo-tracking; Google Picassa Facial Recognition; Google Translation; 411 voice recognition; Google Books; Google Docs; Google Buzz; cloud computing; DNA prints; Google-NSA partnership?
- Accountability for Google requires robust management and internal controls systems like any other publicly-traded company, not a serial practice of asking for forgiveness when Google is caught, and not PR misdirection.
III. Wardriving eerily resembles other Google efforts.
It is not credible that Google was unaware that this pervasive and systemic wardriving practice was actually occurring, when wardriving is so similar in both goal and effect to so many other “free” or “crowd-sourced” activities that Google “openly” engages in.
- Remember that another big potential benefit of a global map of vulnerable WiFi hotspots is to let the open wireless movement know where all potential wireless hotspots are, and that are “free” to use, so people can “share” others’ bandwidth with their implicit permission or piggyback others’ bandwidth illegally without their explicit authorization.
- Moreover, what fuels Google’s business model is free or near free inputs: content, private information and bandwidth. Furthermore, there is a lot of evidence that Google aggressively tries to “change the world” from a place where it has to pay for the inputs it uses, to one where it does not have to pay for the inputs it uses.
- Promoting “Free” content: Book authors and publishers have sued Google for illegally copying over 12 million books without permission.
- The Viacom vs. YouTube case has unearthed undisputed facts that Google leadership premeditatedly decided to change its video model from a legal one that respected copyright to one that did not, when it decided to buy YouTube.
- The MPAA is suing Google for proactively promoting movie piracy websites with higher search rankings.
- Promoting “Free” wireless: Google has long supported “free” wireless, via its support for free unlicensed White Spaces spectrum; “open” regulatory conditions on the 700 MHz auction; its Nexus One experiment to commoditize wireless bandwidth; its “free” Android operating system to commoditize wireless applications; and its support of “free” community wireless networks via New America Foundation’s advocacy — where Google’s CEO is Chairman.
- Promoting free software: Google strongly supports free/open source software for all software, but the software that runs Google’s monopoly search engine, auctions and quality score.
- Promoting subsidized bandwidth: Google’s lobbying leadership for net neutrality and Title II common carrier regulation of broadband providers is all about de facto bandwidth subsidies for Google-YouTube’s world-leading bandwidth consumption.
- Promoting Internet engineering changes: Google also is proactively working at all levels to make the web faster: by re-engineering the DNS (Domain Name System); by forcing websites to load content faster or have their search ranking lowered; by backing Measurement Lab to be the world’s bandwidth speed cop; and by collecting copious user network data via Google’s pilot program for ultrafast broadband.
- Promoting “Free” content: Book authors and publishers have sued Google for illegally copying over 12 million books without permission.
- Does it not stretch all credulity that a company that is so interested in every aspect of the Internet, making if faster, gaining access to whatever information it can crawl, and getting it all for free, knows absolutely nothing about a Google global three-year information collection effort that would dovetail perfectly with most all of their goals, projects and initiatives?
IV. Conclusion: What to expect.
In conclusion, expect multiple serious investigations of Google’s wanton wardriving around the world.
EU: Google should be deeply concerned about the EU’s investigation and reaction because the EU has very strict data protection laws and expectations. It is hard to fathom the EU not holding an aggressive and dismissive American monopoly like Google accountable for serial violations of its laws.
- Google should be especially concerned of criminal penalties in Italy, given that Italian authorities have already criminally convicted three Google executives in absentia for YouTube not having sufficient internal controls to quickly pull down an obviously objectionable video of students bullying a disabled schoolmate.
U.S. Overall in the U.S., it is unlikely that Google’s well-known political influence will be able to snuff out Federal law enforcement investigations of Google’s wanton wardriving.
- In part that’s because Google’s former top lobbyist, Andrew McLaughlin, who is now the Federal Government’s Deputy Chief Technology Officer, was just reprimanded yesterday by the White House for violating the Federal Records Act, and for violating the Administration’s code of ethics, because Mr. McLaughlin communicated with Google officials on matters relevant to Google.
- Moreover, Google’s wanton wardriving effort is an unhelpful reminder of Google’s efforts to get Google a White House special waiver so that Google could track Americans who visit the White House website via YouTube, contrary to longstanding Clinton-Bush policy.
DOJ: It is likely that the FBI will have to investigate to ensure that Google’s systematic eavedropping effort via its wanton wardriving effort did not illegally record any personal VoIP phone calls without authorization.
State AGs: Various state privacy and communications laws may have been violated by Google as well, so some State Attorney Generals will likely be investigating, especially if they have any concerns that the DOJ/FBI/FTC are not taking the issue seriously enough.
FTC: The FTC appears to be losing patience with Google’s double speak of supporting privacy in their statements but exhibiting serial disdain for users in their business actions. This latest Google violation of privacy is so at odds with what the FTC says are its privacy policies and expectations for U.S. companies like Google, it will be very surprising if the FTC does not formally investigate Google’s wanton wardriving. If they don’t, Facebook and Google will rightly see it as a green light to continue pushing the privacy-publicacy envelope.
FCC: Don’t expect the FCC to see any need to respond to the data-driven evidence of Google’s actual wanton wardriving of the Nation’s last hundred feet to the home, because this FCC is preoccupied with preventing potential last mile problems everywhere in the country — except for Mountain View, California.
Congress: Political interest and bipartisan consensus is clearly increasing in Congress concerning privacy legislation, in large part because of Google and Facebook’s egregious privacy track records. This latest major Google privacy scandal, on top of the Google Buzz fiasco, and on top of Facebook’s serial moving of the privacy goal posts during the game, easily could increase support for Rep. Boucher’s important new privacy bill.
Consumer Groups: Given that Google’s unauthorized tracking efforts are increasingly spiraling out of control, there could be renewed interest in the recommendation of privacy groups to institute a national “Do not track List” modeled after the populist, simple, effective, and wildly successful FTC “Do not call” list, which prevents unwanted invasion of privacy from telemarketers calling one’s home.
The open question is if this latest major Google privacy scandal will be the proverbial straw that broke the camel’s back for Google.
*****
Publicacy vs Privacy Series:
Part II: Implications of User Location Tracking
Part III: Extreme Publicacy — Does Privacy Stand a Chance?
Part VI: Why FTC’s Behavioral-Ad Principles Are a Big Deal
Part V: Privacy prevailed in Facebook’s privacy-publicacy earthquake
Part VI: Do People Own Their Private Information Online?
Part VII: Where is the line between privacy and publicacy?
Part VIII: “Privacy is Over”
Part IX: “Interventional Targeting? “Get into people’s heads”
Part X: “Latest publicacy arguments against privacy”
Part XI: “The Web 2.0 movement is opposed to the privacy movement.”
Part XII: “No consumer control over the commercialization of their privacy?”
Part XIII: “Does new Government cookie policy favor publicacy over privacy? “
Part XIV: “Google Book Settlement “absolutely silent on user privacy”
Part XV: Yet more evidence of Google’s hostility to privacy
Part XVI: Poll: Americans strongly oppose publicacy & expect online privacy
Part XVII: FaceBook CEO throws privacy under the bus
Part XIII: Fact Checking Google’s privacy principles
Part XIX: Google’s Privacy “Buzz” Saw
Part XX: Facebook and Google in a race to the Privacy bottom?
The FCC’s retransmission rules now perversely cause consumers to suffer unnecessary collateral damage in retransmission negotiations — the exact opposite outcome the FCC wants — in large part because the FCC’s retransmission rules have not kept pace with dramatic competitive and technology changes over the last two decades.
- The FCC should, and easily can, protect consumers from becoming unnecessary collateral damage in retransmission negotiations by simply updating their nearly twenty-year-old FCC regulations with petitioned common sense modifications that ensure consumers never find themselves unnecessarily in the “bulls-eye” of the FCC’s out-dated retransmission rules again.
To better understand how rules that possibly made sense in 1992, could produce predictably perverse and dysfunctional consumer outcomes today, think of the retransmission rules, like a regulatory “gun” that was originally and permanently pointed directly at a 1992 cable monopoly and no one else.
- However, over almost twenty years, innovation and competition have dramatically transformed the video marketplace from that original 1992 monopoly fixed “target,” into a competitive video market place according to the FCC.
- This means that the FCC’s retransmission “gun” is now no longer pointed directly at a cable monopoly, but it is aimed at only one of many video competitors and their completely innocent customer base. This means cable’s customer base is increasingly becoming unnecessary collateral damage because of increasingly ill-aimed retransmission negotiation tactics allowed and condoned by the FCC.
- The FCC has the authority and the obligation to protect consumers here by updating the FCC’s Section 325 rules with a functional dispute resolution framework and a mandatory interim carriage requirement during negotiations — so that the current retransmission regulatory “gun” is no longer aimed directly at innocent consumer bystanders, and so that consumers no longer have to be collateral damage in someone else’s battle.
So why is the current retransmission negotiation dynamic so dysfunctional?
First, retransmission is a completely artificial construct created for an ancient regulated monopoly market that has long since become a competitive video market. The construct now incorrectly assumes that the market could never bring supply and demand into equilibrium for consumers, so the government must rig the game to produce a one-sided outcome.
Second, now that the monopoly predicate of the retransmission construct is no longer true, the design of this artificial construct predictably produces serious market distortions and dysfunction.
- When a construct has no penalty and all reward for arbitraging consumer welfare, broadcasters predictably will arbitrage consumer welfare with impunity… and consumers lose.
- When a construct inherently discourages mutual benefit or win-win outcomes, the construct will predictably produce lose-lose outcomes… and consumers lose.
- When a construct assumes that someone else’s consumers are cost-free pawns to be used for competitive advantage, predictably consumers will be treated like pawns by the regulatory-advantaged party… and consumers lose.
- When a construct is designed to always produce a brinksmanship negotiation dynamic, predictably consumers will be whipsawed by brinkmanship tactics at the worst possible time… and consumers lose.
- When an FCC regulatory construct nonsensically puts consumers’ interests last, consumers get unpredictable loss of the most popular programming and predictable higher costs of programming… and consumers lose.
- When a construct is inherently uneconomic without any competitive supply and demand discipline or equilibrium, the construct predictably yields uneconomic outcomes of ever-increasing prices for programming… and consumers lose.
Third, unfortunately this artifical Government-skewed retransmission dynamic is currently producing exactly what the FCC rules perversely encourage — i.e. broadcasters extract ever-spiraling carriage costs from cable operators that are either passed on to consumers or consumers suffer from the threat of lost popular programming at the worst possible time.
- A skewed mechanism predictably produces skewed outcomes.
- A retransmission regulatory mechanism that ignores the possibility of negative outcomes for consumers, while also incenting the abuse of someone else’s customers under the unwitting protection of the FCC, predictably yields an unnecessary rotten outcome for consumers.
In sum, the FCC’s outdated rules have now become the problem.
- They are dysfunctional because they do not recognize market reality and because they are not designed to protect consumers, but force consumers to pay higher than market prices for programming because the rules won’t allow mutual-benefit, market-based negotiations on the merits.
- Now that the FCC understands there is a consumer problem, and that there are simple common sense solutions to protect consumers from the problem, the burden is on the FCC to fix the problem without delay.
- The ball is now in the FCC’s court.
Why FCC faces such skepticism on Title II assurances
May 14, 2010
There are many valid reasons why industry is highly skeptical of the FCC’s many rhetorical assurances that nothing bad will happen from the FCC’s planned regulation of broadband for the first time as a Title II common carrier service.
First, in response to the Comcast court decision, the FCC is hastily gambling away the benefits of broadband’s proven “solid business foundation,” in its longshot bet to win back an unproven “solid legal foundation” for the FCC.
- The FCC apparently is ignoring that restoring the FCC’s legal “status quo” comes at the expense of the broadband industry’s long-time status quo of being unregulated and the consumer’s status quo of enjoying the benefits of a market driven Internet “unfettered by Federal and State regulation.”
- Despite employing all the soothing words the FCC thinks the industry wants to hear, industry is much more interested in actions than words, as actions are what affect their businesses — not words.
- Simply, industry is increasingly watching what the FCC does rather than what it says.
- The fact is industry is not reassured that nothing bad will happen to them, because the FCC has announced it plans to apply the most onerous foundational common carrier regulations on the broadband industry for the first time without any defensible justification or legal authority to do so.
Second, the assertion that there has never been an instance of FCC “un-forbearance,” is no assurance, because the FCC has never before reversed an entire sector’s regulatory status before either.
- So why should industry trust that the forbearance process would be any less arbitrary going forward than the FCC’s arbitrary institution of arbitrary Title II sections to an arbitrary set of entities?
- Simply, if this FCC is willing to turn the classification process on its head in direct opposition to the thrust of the Comcast court case, competition law, and multiple unanimous FCC precedents, what confidence is there that this or a future FCC could not turn the forbearance process on its head in the very same way?
- If this FCC is intent on flouting the court, Congress and precedent, why would it not flout the forbearance process when and if that time comes?
- At core here is that there can be no meaningful regulatory assurances in the absence of demonstrable FCC respect for the rule of law.
Third, FCC assurances that price regulation and unbundling are “off the table,” is no assurance either, in that the FCC is pretty clearly not in ultimate control of what agenda items are, or are not, “on the table.”
- If the Washington Post report was accurate that the FCC was leaning against applying Title II to broadband, but subsequently switched abruptly after enduring withering lobbying pressure from FreePress/Moveon.org and the Google gang, how can the industry be reassured that the next time outside special interests barrage the FCC/White House with special entreaties, un-forbearance would not be put back “on the table” at the FCC?
In sum, what would give industry reassurance that the FCC is not pursuing a new de-competition policy, will not harm private investment/jobs, and is not intent on regulating the Internet, would be for the FCC to:
- Respect and not ignore the legal message of the Comcast court decision; and
- Respect the Constitution by explicitly seeking from Congress the authority the FCC would like to have.
FCC’s Achilles Heel on Broadband Third Way Approach
May 11, 2010
The Achilles heel of the FCC’s announced “Third Way Legal Approach” for regulating the Internet is that it is simply not credible.
Incredible claim #1: The third way “does not involve regulating the Internet.”
- At core the FCC is baldly attempting to redefine the Internet, because the real and settled definition of the Internet (that has been in the law for fifteen years, that the FCC has long and consistently used, and that the Supreme Court has used) does not fit the FCC’s adopted FreePress/Google political narrative.
- Moreover, if everyone knows that the Internet suite of protocols is TCP/IP (Transmission Control Protocol/Internet Protocol)… and the FCC third way legal approach specifically claims: “The provisions of Title II would apply to the transmission component of broadband access service...” how can the FCC credibly argue that regulating the essence of the Internet — TCP/IP Internet transmission protocols — is not regulating the Internet?
- It appears that the FCC believes the Congress, the Courts and the media are clueless and incapable of knowing what the Internet has always been and still is.
Incredible claim #2: The third way is a “light touch” regulatory approach.
- The third way is a very heavy regulatory hand, the exact opposite of “light touch” regulation, according to Clinton Adminstration FCC Chairman Bill Kennard in a 1999 public speech to other regulators:
- “It is easy to say that government should write a regulation, to say that as a broad statement of principle that a cable operator shall not discriminate against unaffiliated Internet service providers on the cable platform. It is quite another thing to write that rule, to make it real and then to enforce it. You have to define what discrimination means. You have to define the terms and conditions of access. You have issues of pricing that inevitably get drawn into these issues of nondiscrimination. You have to coalesce around a pricing model that makes sense so that you can ensure nondiscrimination. And then once you write all these rules, you have to have a means to enforce them in a meaningful way. I have been there. I have been there on the telephone side and it is more than a notion. So, if we have the hope of facilitating a market-based solution here, we should do it, because the alternative is to go to the telephone world, a world that we are trying to deregulate and just pick up this whole morass of regulation and dump it wholesale on the cable pipe. That is not good for America.”
Incredible claim #3: The third way would create a “solid legal foundation.”
- At core, how could it possibly be a “solid legal foundation” when the FCC is:
- Redefining the legal definition of the Internet in direct contradiction to the law and Supreme Court — without any authority to do so?
- Imposing Title II on Internet traffic/transmissions for the first time in 30 years in direct contradiction to several FCC precedents?
- Inconsistently arguing for the strictest Title II regulation of sections 201 and 202 because of insufficient competition, while simultaneously arguing there is sufficient competition to warrant mass regulatory forbearance from Title II provisions like section 251 that closely mimic sections 201 and 202.
- How could it be a “solid legal foundation” when it depends on a Supreme Court dissent, not opinion, and on a non-Title II-related Supreme Court Fox vs. FCC opinion on indecency/free speech, which has near zero legal or logical relevance to common carriage regulation?
- How could it be such a clear “solid legal foundation when key legal scholars whom the FCC respects, strongly disagree with the FCC and have publicly explained why the FCC is not on solid legal ground. See:
In short, the FCC is imperiling its professional credibility as a regulator by making incredible claims that fair-minded people can see are patently false.
Not only is the “third way legal approach” not credible as explained above, it is also:
- A lose-lose gamble that will predictably be thrown out by the court; and
- A predictable disaster waiting to happen.
Kudos to Link Hoewing of Verizon Policy Blog for his excellent post systematically eviscerating New America’s Foundation’s fact-challenged attempt to argue that the U.S. is falling behind on broadband.
Facts are powerful and that’s why net neutrality and Title II supporters like New America Foundation and their FreePress/Public Knowledge allies avoid facts like the plague.
The facts are overwhelmingly on the side that the U.S. is a world broadband leader.
