The U.S. government needs to takes transparency more seriously.

Thomas Claburn, Editor at Large, Enterprise Mobility

April 8, 2013

4 Min Read

The Justice Department's response to my FOIA request reads as follows: "Enclosed are 174 pages of documents responsive to your request. Sixty pages are released in their entirety. Certain portions of the remaining 114 pages reflect confidential business information; Antitrust Division attorney work product and the deliberative process of Division personnel; and information the disclosure of which could reasonably be expected to constitute an unwarranted invasion of personal privacy. ..."

The letter goes on to detail why 406 other pages of relevant documents are being withheld in their entirety. And that's to say nothing of 357 pages of printed court documents from U.S. vs. Microsoft sent to me separately, as a courtesy. So much for the paperless office.

You might think that among the 114 partial pages and 60 full pages of material, there might be something that sheds light on Google's objections to search in Windows Vista.

But you'd be wrong. The pages that the Justice Department saw fit to release include news articles from the New York Times, Reuters and other publications about Google's complaint. The entirety of the "responsive material" either has been available to anyone with an Internet connection for years or consists of names, salutations, thank yous and nothing else. Google's complaint itself, which I've sought from Google and been denied, which is mentioned in the released documents, remains a mystery.

We know the result of Microsoft's agreement with the Department of Justice, announced June 19, 2007, to resolve Google's complaint. Microsoft promised: to provide a way for users and original equipment manufacturers to select the default desktop search program in Windows Vista; to ensure that Windows launches the default desktop search program whenever Windows launches a top-level window to accept search queries; and to affirm Vista's search index will run in the background and cede computing resources to other applications (rather than running concurrently with Google Desktop Search and slowing things down). But beyond that details are sketchy.

A 10-page letter, dated June 1, 2007, from Google's chief legal officer David Drummond to then U.S. Assistant Attorney General Thomas O. Barnett, reads thus: "Dear Assistant Attorney General Barnett: Thank you for meeting with us last week to discuss REDACTED." The remainder of the first page is a gray box, followed by nine more pages graced with gray rectangular redaction overlays.

Google Letter

Google Letter

Arguably, none of this matters. Microsoft is struggling to remain relevant in the mobile era. Google's search business is doing just fine. Let it be water under the bridge.

But the dwindling relevance of Windows Vista argues for greater disclosure, not continued stonewalling. If a six-year-old technical conflict between Microsoft and Google is truly inconsequential, that's a good reason for the details to receive public scrutiny.

And this isn't just about ancient history. The application of antitrust law remains hugely important to technology companies, as can be seen from Google's recent close call with the Federal Trade Commission. One of the reasons I want to understand the substance of Google's complaint is to see how the company's arguments might apply to more current technical disputes and to determine why the Justice Department initially wanted to reject Google's complaint and then accepted it later on.

Microsoft was forced to make changes in Windows Vista to accommodate third-party search products. Companies and individuals deserve to know more about the conditions for government-mandated interoperability, given the technical and contractual ways in which Apple, Google and other companies lock competitors out or tilt the playing field.

This matters because the Freedom of Information Act is subverted when compliance is indistinguishable from non-compliance.

If the government's interpretation of FOIA is that it can release blank pages to meet with its legal obligations, journalism is diminished and pushed toward the Wikileaks model. There has to be more to public accountability than government-authorized leaks, whistleblowers who risk prosecution, and data the government fumbles into public view through incompetence. The government needs to release real information when it agrees to do so, or to refuse and face a court challenge if disclosure is deemed impermissible.

About the Author(s)

Thomas Claburn

Editor at Large, Enterprise Mobility

Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful master's degree in film production. He wrote the original treatment for 3DO's Killing Time, a short story that appeared in On Spec, and the screenplay for an independent film called The Hanged Man, which he would later direct. He's the author of a science fiction novel, Reflecting Fires, and a sadly neglected blog, Lot 49. His iPhone game, Blocfall, is available through the iTunes App Store. His wife is a talented jazz singer; he does not sing, which is for the best.

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