Sure, and if they don't want to pay with data, then they don't get to use the free search. While I don't love it, it's well within GitHub's rights to set those

Sure, and if they don't want to pay with data, then they don't get to use the free search. While I don't love it, it's well within GitHub's rights to set those terms. They pay the bills, they get to decide who uses it, and how. The real problem is that a company like GitHub (now owned by Microsoft, of all companies, sheesh) has a strongly market-leading position in the idea of "publicly-hosted git repositories". Even if they were giving away everything fro free, and not tracking users, that would still be concerning.