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Anonymous No More
Mark Rasch, 2006-08-28

In the age of personal information versus aggregated information collected from search engines and other Internet services, one's privacy can no longer be assured. Mark Rasch looks at a recent Amazon patent application that shows how the laws need to be tightened because the lines of privacy are becoming blurred.

In early August, officials at America Online released information about searches being conducted by AOL members and users of the AOL search tool. This historical data was released onto the Internet by several AOL officials, to demonstrate how useful such data could be for tracking patterns, uses and interest of AOL members. The data was anonymized, with members being assigned random ID numbers instead of userid’s or names, and was only online for a few days. The New York Times demonstrated, however, how easy it was to take that anonymized data, and with a few keystrokes, determine the identity of the searcher, and their personal interests, likes and dislikes – indeed to create a profile of users from this anonymized data. The persons responsible for the "data breach” at AOL were fired – more for a public relations problem than anything else. The case demonstrates how any database, once collected, can be misused, and the significant lack of legal protection for similar information.

Personally identifiable

Privacy laws, both in the United States and abroad generally protect the collection, dissemination and use of “personally identifiable information” of various types and classes. This includes, for example things like identifiable banking or financial information, personal health information, credit card or payment card information, personal communications (such as the contents of e-mails) and so on.

Aggregated information, on the other hand is not generally afforded the same level of protection. Thus, information about trends, overall internet use, health care utilization, overall buying patters, and the like is generally treated as the property of the institution that creates, collects, stores or collates this information. If it is easy to convert the aggregate information into identifiable information, it may be afforded some level of protection, or may still be treated as identifiable information.

For many companies, there is a blurring of the lines between personal information (that is information about ME) and aggregate information. So, for example, Google collects information about every single thing I look for – every search request, the contents of everything delivered, what I click on, where I go from there. They keep both the aggregate information (how many people buy stuff off those ads on the side) and the personal information (tell me everything you have looked at this month.)

The aggregated information is analyzed, processed, sold, and used by Google to increase advertising revenue, do load balancing – all kinds of things. The same is true of ISP’s and e-commerce sites. They collect and analyze massive amounts of information about even the most intimate details about you – who you chat with, who you email, what you read, what you post, and potentially even the source, destination and length of your VOIP calls. Unless they have agreed not to in a Terms of Service agreement, there is virtually nothing preventing them from using this data, in an aggregated and “anonymous” fashion, and very little preventing them from using it otherwise.

Governments – particularly the US Government – have taken advantage of this fact to attempt to obtain massive amounts of information. For example, during the course of litigation involving the government’s efforts to prohibit materials that are “harmful to minors” the US government subpoenaed from the largest search companies (Yahoo, MSN, and Google) massive amounts of such aggregate information. When they got the cooperation of various telephone companies to turn over massive amounts of telephone calling records (non-content information) they apparently argued that such aggregated information (in that case not anonymized) was not entitled to legal protection.

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Mark D. Rasch is an attorney and technology expert in the areas of intellectual property protection, computer security, privacy and regulatory compliance. He formerly worked at the Department of Justice, where he was responsible for the prosecution of Robert Morris, the Cornell University graduate student responsible for the so-called Morris Worm and the investigations of the Hannover hackers featured in Clifford Stoll’s book, "The Cuckoo’s Egg."
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