Pebble In My Shoe

SMEARCH ENGINE

What happens when Google turns on you — and what can you do about it?

“I need to see you right away.”

“What’s it about?” I asked.

He was impatient. “I can’t talk about it over the phone.”

A moment later I was standing in the lobby of the HR department. Through an open door I glimpsed the HR chief sitting behind a large computer monitor. He leaned to one side, waved me in, pointed to an empty chair and shut the door. Then he flashed an impish smile and handed me a sheet of paper.

“Can you explain this?” He asked, carefully monitoring my reaction.

It was a fax from a self-proclaimed expert alerting my employer that someone posted slanderous accusations on a site called Ripoff Report. I was accused of being “a con man,” who misrepresented my company and that I borrowed $7500 for a “made up investment that never happened.” The author combined a headshot and biographical details from public sources. There were innuendos and search engine trigger words; my employer’s name was mentioned five times, and my name, location and twitter handle was mentioned thirteen times. It was the work of a pro, well versed in the black art of search engine optimization.

The “expert” offered to mitigate the impact on my employer’s reputation, for a large fee.

“It’s fake,” I answered.

He watched me with furrowed eyebrows and tight lips. “Are you sure?”

Like so many false reviews, smears, and phishing schemes, the fraudulent post was a rambling narrative that, at first, sounded plausible, then came unravelled on closer inspection. When my inquisitor read the post again he reacted the way an art appraiser might react to a forgery. Something clicked in the administrator’s head; the furrow vanished. The storm clouds passed.

In some ways it was a narrow escape that hinged on the perpetrator’s lack of ability to weave a tale. If the author had spent a little more time polishing the lie, my HR director would have bought it.

The next day my employer hired an investigator who, after a week of probing, determined the smear was the work of an offshore contractor who was probably colluding with the reputation fixer who sent the fax. But there was no way to prove it and going after the perpetrators wasn’t practical because they worked in a shadowy underworld. He added that Mayo-Smith was a unique last name which made me particularly vulnerable.

“What should I do?” I asked.

“Just ignore it,” the investigator advised. “If we pay them to remove it, they’ll just keep doing the same thing — it wont end.”

I took his advice thinking the smear would eventually fade from the search rankings and life would move on.

But it didn’t work out that way.

Google Search Results for “John Mayo-Smith” April 8, 2016

Five years later, when I searched John Mayo-Smith the harmful post was stuck near the top of the search results. Google (and other search engines) insisted on giving the smear lots of weight in the rankings. This, despite the fact I published numerous articles for respected journals and engaged in what most people would agree were Google-worthy activities.

Why did malicious links rise to the top? I wondered.

On their site, Google claimed, “When a user enters a query, our machines search the index for matching pages and return the results we believe are the most relevant to the user.

Google returns results the company believes are the most relevant to the user.

That meant, a fabricated story linked to a corporate blackmail scheme, was what Google believed was the most relevant to users that searched for John Mayo-Smith. Year after year, people searched for my name and Google repeatedly served the smear at or near the top of the results page.

It wasn’t just the ranking and the lies — the constant repetition was a worry too.

Psychological research showed time and again that repeating a message increased its effect. Repetition was used in advertising, politics and the media because it worked. When Google repeated lies at the top of search results, the effect of the smear was increased.

What could be done?

I reached out to friends and professional contacts at Google. But when I explained my plight, they clammed up. “That’s a secret part of Google,” one person said.

I did more research and found out I wasn’t the only one who thought there was a problem. Public policy makers in Europe were concerned too. In fact, they passed a Right to Forget law that induced Google to change its business practices. In the wake of that ruling more than 500,000 obnoxious links were removed. But in the U.S. there was no such law. And when I contacted two attorneys to discuss my options they said it was impossible to have the link removed without a court order, a process that would cost at least $7,000, and wasn’t guaranteed to work.

There was something else. I believed in free speech. I shared Google’s position on censorship. I thought obnoxious links should be bumped off the front page — not removed entirely.

When it came to search results, the point was the order, which links appeared first, which were the most relevant. Google didn’t create the smear but they chose to make it relevant. According to Google, one of the most relevant pieces of information about John Mayo-Smith was a story fabricated by an offshore blackmailer.

If a newspaper or magazine published a list of things about John Mayo-Smith and put something libelous at the top, I felt certain there would be a valid defamation claim. But Google was immune. Why?

I kept digging and discovered the heart of the problem was something called “Section 230.” This was language buried in the Communication Decency Act (CDA) of 1996 that said, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. It meant “providers” could circulate lies without fear of defamation claims while “publishers” could not.

Source: support.google.com

Google was saying a fabricated story was the most relevant search result. They were dragging my name through the mud, but, thanks to section 230, there wasn’t a darn thing I could do about it.

That got me thinking. Google claimed to be a “provider.” But was it?

I posed the question to another attorney who explained the difference between a publisher and a provider came down to creativity. In a case called Feist v. Rural, the supreme court determined that a company was a provider if it amassed a list without creative input. Otherwise, it was deemed a publisher. He added that search engine companies hated talking about Feist v. Rural because it was their achilles heel — it was also the reason they never put copyright notices on their search results pages.

I went further down the rabbit hole and found more.

Alice_par_John_Tenniel (Public Domain)

There was a blurry line between tinkering and creative input. For example, a web company that served an alphabetical list of San Francisco phone numbers was a provider; if it ordered the same phone numbers by popularity — then it was a publisher. It only took a small bit of judgment and rearranging to turn a list of facts into something that was “authored” and therefore not protected by section 230.

Therefore, to hide behind section 230, Google needed users (and regulators) to think of search results like an alphabetical list of phone numbers — merely an obvious collection of facts instead of an original creative work.

But was it?

Thousands of Google people worked on search. If it was just a mindless, uncreative, computer program, then what were all those people doing?

I found part of the answer in something called the “Google webmaster webspam tool.” This was the mechanism technicians used to report nefarious web links. When I reported the smear link to Google, this was the message I got back:

Source: google.com/webmasters/tools/spamreportconfirm

“We investigate webspam reports, prioritizing by search result impact, and take action when we uncover abuse. In egregious cases, we remove pages from our index.”

That was interesting.

“Investigating,” “prioritizing,” and “removing” items from lists — those were things publishers did. If Google was a publisher then it was not a provider. And if Google was not a provider then it was not protected under section 230 and was not allowed to promote lies — and drag my name through the mud. I shared my layman’s analysis with yet another legal expert and this was what he said:

“The copyright angle hasn’t come up before and is somewhat interesting.”

David and Goliath, by Osmar Schindler (c. 1888) (Public Domain)

Translation: My idea was a small legal stone to sling at Goliath’s forehead.

I stayed on the trail and found out that the copyright angle had come up before — in Australia. Last year, in a landmark case, the Supreme Court of South Australia found Google was a publisher of, and therefore liable for, defamatory content published in search results and third party websites to which it provides links. Even thick skinned Australians thought Google crossed a line.

I looked into filing a complaint like the Australians but decided against it (which of course meant I didn’t have the money). Also, there were many people in my situation with small pebbles to sling. It was just a matter of time until one of them hit Google in the forehead. I waited five years for the obnoxious link to go away, I could wait a little longer.

I wanted to ignore all this, but like a pebble in my shoe, it wasn’t easy.

(to be continued…)

© 2016 John Mayo-Smith