[ICTs-and-Society] Blogpost about Google’s “New“ Terms of Use and Privacy Policy: Old Exploitation and User Commodification in a New Ideological Skin

[Christian Fuchs]

http://fuchs.uti.at/789/

Google’s “New“ Terms of Use and Privacy Policy: Old Exploitation and 
Commodification in a New Ideological Skin

On March 1st, 2012, Google changed its terms of use and privacy policy. 
What has changed? Has something changed?

Google’s general terms of services that were valid from April 16, 2007, 
until the end of February 2012, applied to all of its services. It 
thereby enabled the economic surveillance of a diverse multitude of user 
data that was collected from various services and user activities for 
the purpose of targeted advertising: “Some of the Services are supported 
by advertising revenue and may display advertisements and promotions. 
These advertisements may be targeted to the content of information 
stored on the Services, queries made through the Services or other 
information”.

Google specified in its old privacy policy (valid from October 20, 2011, 
until the end of February 2012) that the company “may collect the 
following types of information”: personal registration information, 
cookies that store “user preferences”, log information (requests, 
interactions with a service, IP address, browser type, browser language, 
date and time of requests, cookies that uniquely identify a user), user 
communications, location data, unique application number. Google said 
that it was using Cookies for “improving search results and ad 
selection”, which is only a euphemism for saying that Google sells user 
data for advertising purposes. “Google also uses cookies in its 
advertising services to help advertisers and publishers serve and manage 
ads across the web and on Google services”. To “serve and manage ads” 
means to exploit user data for economic purposes. The Google ad 
preferences manager displays the user interests and preferences that are 
collected by the use of cookies and used for targeted advertising.

Google’s old privacy policy specified that “Google uses the DoubleClick 
advertising cookie on AdSense partner sites and certain Google services 
to help advertisers and publishers serve and manage ads across the web”. 
Google used DoubleClick, a commercial advertising server owned by Google 
since 2007 that collects and networks data about usage behaviour on 
various websites, sells this data, and helps providing targeted 
advertising – for networking the data it holds about its users with data 
about these users’ browsing and usage behaviour on other web platforms. 
There was only an opt-out option from this form of networked economic 
surveillance. Google’s privacy policy provided a link to this option. 
Opt-out options are always rather unlikely to be used because in many 
cases they are hidden inside of long privacy and usage terms and are 
therefore only really accessible to knowledgeable users. Many Internet 
corporations avoid opt-in advertising solutions because such mechanisms 
can drastically reduce the potential number of users participating in 
advertising. That Google helped advertisers to “serve and manage ads 
across the web” means that it used the DoubleClick server for collecting 
user behaviour data from all over the WWW and using this data for 
targeted advertising. Google’s exploitation of users is not only limited 
to its own sites, its surveillance process is networked, spreads and 
tries to reach all over the WWW.

The analysis shows that Google makes use of privacy policies and terms 
of service that enable the large-scale economic surveillance of users 
for the purpose of capital accumulation. Advertising clients of Google 
that use Google AdWords are able to target ads for example by country, 
exact location of users and distance from a certain location, language 
users speak, the type of device used: (desktop/laptop computer, mobile 
device (specifiable)), the mobile phone operator used (specifiable), 
gender, or age group.

On January 25, 2012, the EU released a proposal for a General Data 
Protection Regulation that defines a right of individuals not to be 
subject to profiling, which is understood as  “automated processing 
intended to evaluate certain personal aspects relating to this natural 
person or to analyse or predict in particular the natural person’s 
performance at work, economic situation, location, health, personal 
preferences, reliability or behaviour“ (article 20, 1). Targeted 
advertising is such a form of profiling. According to (the planned) 
article 20, 2 (c), profiling is allowed if the data subject consents 
according to the conditions of article 7, which says that if the consent 
is given as part of a written declaration (as e.g. a web site’s terms of 
use or privacy policy), the “consent must be presented distinguishable 
in its appearance from this other matter“ (article 7, 2). The regulation 
furthermore proposes a right of citizens to be forgotten (article 17), 
which also includes that third parties should be informed and asked to 
erase the same data (article 17, 2), the right to data portability 
(article 18), which e.g. means that all personal data must be exportable 
from Facebook to other social networking sites. A further suggested 
regulation is that by default only the minimum of data that is necessary 
for obtaining the purpose of processing is collected and stored (article 
23). Fines of up to 1 000 000 Euros and 2% of the annual worldwide 
turnover of a company are implemented (article 79). The EU regulation to 
a certain extent limits targeted advertising by the right to be 
forgotten and the special form in which consensus must be given, it does 
however not make targeted advertising a pure opt-in option, which were a 
more efficient way for protecting consumers’ and users’ privacy.

As a result of the announcement of the EU Data Protection Regulation, 
Google over night announced the change and unification of all its 
privacy policies and the change of its terms of use. In the new terms of 
use, the use of targeted advertising is no longer defined in the terms 
of use, but the privacy policy: “We use the information we collect from 
all of our services to provide, maintain, protect and improve them, to 
develop new ones, and to protect Google and our users. We also use this 
information to offer you tailored content – like giving you more 
relevant search results and ads”. Although Google presents its new 
policies as major privacy enhancement (“a simpler, more intuitive Google 
experience. […]  we’re consolidating more than 60 into our main Privacy 
Policy. Regulators globally have been calling for shorter, simpler 
privacy policies – and having one policy covering many different 
products is now fairly standard across the web” 
(http://googleblog.blogspot.com/2012/01/updating-our-privacy-policies-and-terms.html).

The core of the regulations – the automatic use of targeted advertising 
– has not changed. The European Union does not require Google to base 
targeted ads on opt-in. Google offers two opt-out options for targeted 
ads: one can opt-out from the basing of targeted ads on a) search 
keywords and b) visited websites that have Google ads (Ads Preferences 
Manager, https://www.google.com/settings/ads/preferences/).

In the new privacy policy, “user communications” are no longer mentioned 
separately as collected user information. But rather content is defined 
as part of log information: “Log information. When you use our services 
or view content provided by Google, we may automatically collect and 
store certain information in server logs. This may include: details of 
how you used our service, such as your search queries”.  Search keywords 
can be interpreted as the content of a Google search. The formulation 
that log information is how one uses a service is vague. It can be 
interpreted to also include all type of Google content, such as the text 
of a gMail message or a Google+ posting.

In the new privacy policy, Google says: “We may combine personal 
information from one service with information, including personal 
information, from other Google services – for example to make it easier 
to share things with people you know. We will not combine DoubleClick 
cookie information with personally identifiable information unless we 
have your opt-in consent”. This change is significant and reflects the 
circumstance of the EU data protection regulation’s third-party 
regulation in the right to be forgotten (article 17, 2). The question if 
DoubleClick is used for Google’s targeted ads more or less is based on 
the question how extensively and aggressively Google tries to make users 
to opt-in to DoubleClick. The effect is that Google will no longer be 
able to automatically use general Internet user data collected by 
DoubleClick. However, the unification of the privacy policies and the 
provision that information from all Google services and all Google ads 
on external sites can be combined allows Google to base targeted 
advertising on user profiles that contain a broad range of user data. 
The sources of user surveillance are now mainly Google services. As 
Google spreads its ad service all over the web, this surveillance is 
still networked and spread out. Google tries to compensate the limited 
use of DoubleClick data for targeted advertising with an integration of 
the data that it collects itself.

Concerning the use of sensitive data, both the old and the new privacy 
policy specify: “We require opt-in consent for the sharing of any 
sensitive personal information”.  In addition, the new policy says: 
“When showing you tailored ads, we will not associate a cookie or 
anonymous identifier with sensitive categories, such as those based on 
race, religion, sexual orientation or health”. Targeted ads use data 
from all Google services, including content data”.

The proposed EU Data Protection Regulation says that the processing of 
sensitive data (race, ethnicity, political opinions, religion, beliefs, 
trade-union membership, genetic data, health data, sex life, criminal 
convictions or related security measures) is forbidden, except if the 
data subject consents (article 9). Google continues to use content data 
(such as search queries) for targeting advertising that is based on 
algorithms that make an automatic classification of interests. By 
collecting a large number of search keywords by one individual, the 
likelihood that he or she can be personally identified increases. Search 
keywords are furthermore linked to IP addresses that make the computers 
of users identifiable. Algorithms can never perfectly analyze the 
semantics of data. Therefore use of sensitive data for targeted 
advertising cannot be avoided as long as search queries and other 
content are automatically analyzed. Google’s provision that it does not 
use sensitive data for targeted ads stands in contradiction with the 
fact that it says it uses “details of how you used our service, such as 
your search queries”.

The overall changes introduced by Google’s new privacy policies and 
terms of use are modest, the fundamentals remains unchanged: Google uses 
targeted advertising as a default. DoubleClick is now less likely to be 
used for targeted advertising. Google has unified its privacy policies. 
Whereas Google presents this move as providing more transparency (“We 
believe this new, simpler policy will make it easier for people to 
understand our privacy practices as well as enable Google to improve the 
services we offer”, 
http://googleblog.blogspot.com/2012/01/updating-our-privacy-policies-and-terms.html), 
it also enables Google to base its targeted ads on a wide range of user 
data that stem from across all its services.

Google claims that it does not use sensitive data for targeted ads, 
which is contradicted by the definition of content data as log data that 
can be used for targeted ads. Google’s old privacy terms (version from 
October 20, 2011) had 10 917 characters, which is an increase of 30%. 
The main privacy terms have thereby grown in complexity, although the 
number of privacy policies that apply to Google services was reduced 
from more than 70 to one.

Google present its updated terms of use and privacy policies as new, 
although no fundamental improvements of user privacy protection can be 
found. The “change” is an ideological marketing strategy aimed at 
maintaining the stability of the exploitation of the labour of users 
that generates value and generates Google’s profits that in 2011 
amounted to $8.5 billion 
(http://www.forbes.com/global2000/#p_1_s_arank_ComputerServices_All_All). Google 
continues to automatically collect, analyse and commodify a multitude of 
user data that is generated by searches and the use of Google services. 
The Marxist communication scholar Dallas Smythe wrote in 1981: “For the 
great majority of the population […] 24 hours a day is work time. […] 
[Audiences] work to market […] things to themselves”. For the great 
majority of Internet users, most of Internet use is (value-generating) 
labour time. Internet users work on Google and other corporate platforms 
to market things to themselves and are transformed into an Internet 
commodity that is sold to targeted advertising clients in order to 
accumulate capital in the amount of billions of Euros.

In a response letter to the EU Article 29 Data Protection Working Party 
(concerning Google’s updated policies and terms; see 
http://www.edri.org/book/export/html/1225), Google’s Global Privacy 
Counsel Peter Fleischer writes that “we are not selling our users’ 
data”. One wonders where Google’s $US 8.5 billion profits come from, 
except from the commodification of the data results of users’ activities?

The EU Article 29 Data Protection Working Party asked the French 
National Commission for Computing and Civil Liberties (CNIL) to analyse 
Google’s new policies. In a letter to Google, CNIL shows deep concern 
and said that “our preliminary analysis shows that Google’s new policy 
does not meet the requirements of the European Directive on Data 
Protection […] Moreover, rather than promoting transparency, the terms 
of the new policy and the fact that Google claims publicly that it will 
combine data across services raises fears about Google’s actual 
practices. Our preliminary investigation shows that it is extremely 
difficult to know exactly which data is combined between which services 
for which purposes, even for trained privacy professionals. In addition, 
Google is using cookies (among other tools) for these combinations and 
in this regard, it is not clear how Google aims to comply with the 
principle of consent laid down in Article 5(3) of the revised ePrivacy 
Directive, when applicable. The CNIL and the EU data protection 
authorities are deeply concerned about the combination of personal data 
across services: they have strong doubts about the lawfulness and 
fairness of such processing, and about its compliance with European Data 
Protection legislation”. Big Brother Watch reports that only 12% of the 
Google users have read the new policy and that 65% are not aware that 
the changes have now come into effect. The initiative says: “Google is 
putting advertiser’s interests before user privacy and should not be 
rushing ahead before the public understand what the changes will mean”.

According to the proposed new EU Data Protection Regulation 
(http://ec.europa.eu/justice/newsroom/data-protection/news/120125_en.htm), 
Google’s exploitation of users is perfectly legal. That it is legal does 
however not mean that we cannot consider Google commodification as a 
violation of user/consumer/Internet workers’ privacy, but rather that 
the EU’s suggested legal provisions do not provide enough protection for 
users. The only way forward is to legally require all Internet companies 
(and companies in general) to necessarily make targeted advertising an 
opt-in option by law, which would give users and consumers more control. 
Implementing such a provision requires not only courage, it also 
requires not to be afraid of organised business interests. It is however 
the only way for putting privacy interests first. Today, profit stands 
over privacy protection and therefore over people. Google is one of the 
best examples for this circumstance. Google’s “new” privacy policy is 
not new at all and should consequently best be renamed to “privacy 
violation policy” or “user exploitation policy”.

Related publication:
Fuchs, Christian. 2011. A contribution to the critique of the political 
economy of Google. Fast Capitalism 8 (1). 
http://www.uta.edu/huma/agger/fastcapitalism/8_1/fuchs8_1.html