Google, DoJ Face Off in Search Data Tussle

UPDATED: U.S. District Judge James Ware said today he would rule in a matter of days on the Department of Justice’s (DoJ) demand that Google turn over search records to the government.

Ware presided over a hearing in San Jose in which the DoJ is seeking to force Google to comply with its subpoena request. Ware indicated he was inclined to grant at least some part of the DoJ’s subpoena, but made no official ruling, according to observers.

“At a minimum we’ve come a long way from the initial subpoena request, which was for billions of URLs and an entire week’s worth of search queries,” Nicole Wong, Google’s associate counsel, said in a statement Tuesday. “When the government was asked to justify their demand they conceded that they needed much less.”

The latest developments suggest that the judge is inclined to let the government peek at a sampling — and a much smaller sampling — of some of Google’s indexed pages, which could be viewed as a partial victory for the government, especially since it reduced the size of indexed pages it wants to see to about 50,000.

The judge is expected to issue the full ruling in the issue within days after he heard arguments in the case that has been dubbed Privacy versus Pornography.

The Department of Justice had originally demanded millions of search records from Google last August. Google refused to comply with the subpoena, saying in a court filing that turning over the data would violate its users’ privacy, compromise the relationship it has with users, and expose trade secrets on how Google search technology works.

On Tuesday both sides presented their cases in front of Judge James Ware in San Jose District Court. The hearing had already been postponed twice A decision is not expected on Tuesday.

The government wants to use the information in a study on the pervasiveness of pornography on the Web and the inability of filtering software to block children’s access to such material.

If the government can prove that filtering software is ineffective, it could resurrect the Children’s Online Protection Act (COPA). The act establishes criminal penalties if commercial distributors of “material harmful to minors” do not completely block minors from accessing their Web sites. The U.S. Supreme Court ruled that COPA was “likely to be unconstitutional” in June of 2004 and blocked the government from enforcing it.

Besides the privacy and trade secret issues, attorneys for Google have said that the requested information is irrelevant to the government’s study. The DOJ’s lawyers have insisted in court filings that Google users’ privacy rights will not be violated if the search company turns over the records.

The terabytes of information stored by Google can allow investigators to identify specific users via their IP addresses or cookies stored on users’ machines, but the information the government has requested in this case would probably not violate individuals’ confidentiality.

Privacy advocates and some internet users worry that a bad precedent will be set if Judge Ware rules in favor of the government.

“This is an unprecedented attempt by Department of Justice to gather a mountain of information about what people are searching for on the Internet,” said Kurt Opsahl, staff attorney for Electronic Frontier Foundation.

“It’s the camel getting the nose under the tent. At this point they’re only asking for information not connected to particular users. But what’s to stop them from issuing a second subpoena seeking to identity information for particular search terms and tuning this into a massive fishing expedition?”

Yahoo, Microsoft’s MSN and America Online were also served with subpoenas last August requesting similar search records. All three complied.

Google’s refusal to comply with the order led to Sen. Patrick Leahy (D-Vermont) demanding that the Justice Department publicly document why it wanted to data, how it planned to store and safeguard the data and what plans it might have to issue additional related subpoenas in the future.

If the Justice Department wins the case, its lawyers have asked that Google be required to turn over millions of users’ search requests and one million randomly selected Website addresses within 21 days of the court decision.

According to court filings by Department of Justice lawyers, this information will “assist the Government in its efforts to understand the behavior of current Web users, to estimate how often Web users encounter harmful-to-minors material in the course of their searches, and to measure the effectiveness of filtering in screening that material.”

The data would also, according to the filings, help the government understand what, “Websites people find through the use of search engines, to determine the character of those sites, to estimate the prevalence of harmful-to-minors material on those sites, and to measure the effectiveness of filtering software on that harmful to minors material.”

“The government is not entitled to go on a fishing expedition through millions of Google searches any time it wants, just because it claims that it needs that information,” said American Civil Liberties Union staff attorney Aden Fine, in a statement.

“Anyone asking a court to approve such an intrusive, burdensome request must explain why the information is needed and for what purpose. The government has refused to make its purpose known to the public or to the Court, and Google has rightly denied the government’s demand for this information.”

Roy Mark contributed additional reporting for this story

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