Google Privacy Policy & Terms of Service

Internet Protocol (IP) Address Record Storage: Legal Notice and Publication of Agreement

World Wide Web Contract Formation

Google says its privacy policy is effective on users of its search service, even though it does not publish a link to that policy on its main search page, google.com. Its spokesman says users can easily find the policy simply by searching for "google privacy policy." Further, paragraph 7.2 of Google's terms of service declares that users agree (by contract) to Google's privacy policy simply by using Google services. Just as there is no direct link on google.com to the company's privacy policy, there is no direct link to its terms of service. Effectively, Google says: by virtue of our publication of terms, people who use our services are on notice of our terms sufficient for them to form a contract under those terms. In other words, we don't have to specifically call a web user's attention to terms in order for them to be effective.

Case Decisions
Google's position has merit. In this age of information abundance, a contracting party should be able to notify other parties of terms simply by publishing them in an easy-to-find way. That's what happened in the Shell v. Internet Archive and Greer v. 1-800-FLOWERS cases I've discussed previously. (More on the 1-800-Flowers case appears here.)

Publication of Legal Terms is a Two-Way Street
Yet Google should be mindful that publication of contract terms is a two-way street. Just as Google can publish its terms and thereby notify John Q. Public, Mr. Public can publish his own terms. For example, Mr. Public might publish these terms prominently at johnquincypublic.com: "Contract Terms for Search Engines. My name is John Q. Public and my Internet Protocol address is 111.11.111.1. By virtue of providing search services to me, every Internet search engine agrees not to store, for more than 10 minutes, my Internet Protocol address in relation to my search queries. Any search engine that violates the immediately foregoing sentence agrees to pay me $5 per violation, plus any costs, including attorney fees, I incur in collecting such payment."

An alternative: The legal terms above might be published through a web service that aggregates the privacy message from thousands or millions of individual Internet users. Through the service each individual could log their IP address and adopt the no-search-engine-recording-of-IP-address terms. Individuals could install scripts on their PCs to send updated IP addresses to the service automatically. The service would carry added weight if it were operated by a government privacy commissioner, such as from one of the provinces of Canada. See also my article on publication of privacy terms in electronic healthcare records maintained by companies like Google.

Update: Google has added a privacy link to its search home page. My reading is that Google placed the link on its home page in order to comply with a specific California privacy statute, and not because Google believed the link was necessary to enforce its privacy policy under general contract law.

Update:  Historically, public publication of legal notices by government was done through the newspaper. Now, more and more governments are publishing legal notices on their web pages, bypassing newspapers. Eric Sherman, “More Newspaper Bad News: Public Notices Look Elsewhere,” May 25, 2009.


--Benjamin Wright

[Again, ideas on this blog are not legal advice for any particular situation. They are just ideas for public discussion; comments invited.]