Evan Schuman's StorefrontBacktalk

Technically, Google “published” the index of the document. But this document was already “published” online. Indeed, Google could not have prevented its crawler from indexing the document—once the crawler found it (although the document could later be removed from the index). Google had no idea that the document was sensitive, nor did it have a particular duty to the retailer to not index what it believed was “public” information.

So, did Google’s crawler “break in” to the retailer’s store? Was there a “trespass?” If so, Google may have both civil and criminal liability. If not, the retailer is out of luck. Should Google have known that this particular document was not intended to be public? The retailer certainly didn’t “invite” Google to index its documents. The retailer did not give Google “permission” to post the index to its documents. The document could have contained really sensitive information, including PCI data, health data or worse. Does Google have no liability here, or is this the Wild West—if it can be found online, it can be posted for all to see.

The real problem here—from both a legal and a practical point of view—is that no humans are involved. If a “person” were to find a document in an unlocked or unsecured office, that person would likely be able to make a judgment about whether that document was supposed to be publicly accessible. But with billions of documents “accessible” online, it is simply not practical to have a human index them. Indexing is what Google does—and, usually, this indexing helps retailers. It is the crawling and indexing that enables users to find the retailer, locate products or services, find a local store, contact key personnel, respond to marketing pitches and even find coupons or specials. Indexing is good. But indexing becomes bad when the retailer—or some other third party—makes something “available” that it doesn’t want indexed. But the crawler can’t tell that. So even though the crawler, in some way, “took” a document it shouldn’t have, and in a sense “published” that document, and did those things for commercial purposes (to help Google make money), it is unlikely that Google would have significant liability for these actions.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.