Greetings. In Google, Bing, and "Darth Toolbar" yesterday, I attempted to dig down into the underlying issues related to Google's accusations of Bing stealing Google search results.

Judging from responses to that posting, and discussions I'm having in other forums, it's obvious that confusion on this topic still reigns.

It's not at all surprising. This is one of the thornier Internet legal/ethical quandaries that I've encountered in quite some time.

At the gut level, it seems evident that what Microsoft is doing with their Bing toolbar is beyond the bounds of ethical propriety -- that is, it stinks. Google puts a great deal of effort into discovery and indexing of uncommon, "long tail" content, and I'll bet Bing's apparent poaching of this data via the Bing toolbar is particularly galling to Google engineers who've worked so hard to find that content in the first place.

However, just because something is unethical it isn't necessarily illegal -- don't we know it! So when we look at all this from a legal standpoint (keeping in mind that I'm not a lawyer, and in fact only an "armchair" ethicist) it's hard not to get mired down with a headache in short order.

At the foundational level, an important question seems to be -- should individual users be prohibited from sharing their search queries and results?

As I suggested in yesterday's posting, an example could be someone who chose to post their searches, and let's say the top few resulting links, on a public "My Interesting Searches" Web page, where all search engines could discover them.

Would this be illegal? Should it be? We're not talking about mass copying of materials by that individual, only the sharing of some aspects of their own specific search activities.

My guess is that in the U.S. at least, attempts to block such sharing of individual search activity data would run into a First Amendment brick wall in short order.

Microsoft would likely argue (in fact, they are asserting) that what their Bing toolbar is doing is much the same thing -- enabling the voluntary sharing of individual search data by individuals, via a process of "looking over their shoulder" at their normal interactions with Google.

It's certainly possible to question the "voluntary" part of this. I suspect that most Bing toolbar users don't have a clue that their non-Bing search activities are feeding to Bing, and many -- perhaps most -- probably wouldn't be pleased if they were aware of such behavior. But we know the story on disclosures. Most people don't read them. If they read them, they often don't usually understand them fully. Toolbars are "pre-checked" options on so many other software installs now that it's easy to not even realize that you've installed one, or more, in the first place.

And we've allowed this situation to fester for years, since it has generally been to the benefit of the toolbar vendors, one way or another. Technically at least, Microsoft's claim of voluntary use might indeed (disgustingly, sadly) pass court muster.

In essence, Microsoft might claim that what they're doing is "merely" the "crowdsourcing" of individually volunteered search usage data, and that it's no more wrong for them to do this -- e.g., on free speech grounds -- than for individuals to share their personal search activity data with Bing (or anyone else for that matter) through other means.

Would courts buy such a proposition? My assumption is that Microsoft's lawyers looked at this area quite carefully in advance, and that they felt they were on comfortable legal ground, ethical considerations be damned.

I'm not sure that I see on obvious, effective, logical escape route from this legal/ethical conflict that Microsoft has selfishly -- and I might say rather fiendishly -- has foisted upon us.

The interactions and conflicts between free speech rights and intellectual property rights are complex but delicate dances of longstanding. There is much to lose for individuals and other stakeholders on all sides from the outcomes. Microsoft has cleverly pushed the envelope in this case, in such a way as to take advantage of these perplexing issues for their own gain.

We could try pushing back. We could demand even simpler and more prominent disclosures on toolbars, and perhaps that "cross-site" data sharing like that of the Bing toolbar not be enabled by default at installation. Perhaps lawsuits against Microsoft related to this area might get some traction, but their longterm viability and possible collateral effects seem problematic right now at least.

Unless we're willing to take a major and dangerous leap, by trying to place what could be significant new prohibitions on individuals and their rights to share information -- prohibitions that themselves would have to be acceptable to courts -- it is not clear what other measures are immediately available to force the cessation of despicable behaviors like that of Microsoft's Bing toolbar.

Of course, we could simply appeal to Microsoft's own sense of ethics and good corporate citizenship. Given all the negative PR that this entire episode has generated for them, there's always a chance that Microsoft will decide that it's in their own best interests to cease the behaviors under discussion.

Miracles can happen.

Just don't hold your breath.

--Lauren--