January 20, 2006 4:00 AM PST
FAQ: What does the Google subpoena mean?
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Q: So the Justice Department could end up using it in a prosecution?
Tim Wu, a law professor at Columbia University, says it may be fair game.
"That's one of the biggest questions in evidence law," Wu says. "It's like if you subpoena a book for another reason, and you find a murder note in it. Can you use it as evidence?"
If the records are in the hands of a third party such as a search engine, Wu says, "generally speaking they can use it to find out about other crimes."
Q: What does the Justice Department plan to do with this data, anyway?
A declaration (click here for PDF) by Philip Stark, a professor of statistics at the University of California at Berkeley, sheds some light on this.
Stark says he has been "involved in conversations" with attorneys and engineers at the companies targeted by the Justice Department to find "practical approaches to sampling their databases of URLs and user queries."
The point of the exercise, Stark said, is to evaluate "how often Web users" encounter pornographic material online, and "to measure the effectiveness of filters in screening those materials."
Q: Who cares about filtering software's effectiveness, anyway?
The Bush administration, for one. It's trying to defend a 1998 law called the Child Online Protection Act before a Philadelphia judge in a trial expected to begin in October.
When the U.S. Supreme Court ruled in the COPA case in June 2004, the majority voted to send it back down to the lower court for a full trial. That would, the majority said, "allow the parties to update and supplement the factual record to reflect current technological realities."
That's what the Justice Department aims to do--by arguing in court that filtering software is not a realistic alternative to a federal criminal law because the concept of filtering is flawed and unworkable in practice.
Q: Are my search terms private?
If they're unlinked from your identity, and just part of a list of anonymous searches scrolling across a screen, the privacy concerns are minimized.
Google even displays a list of live search terms on a screen that visitors can view in its Silicon Valley headquarters. That's probably one reason why the company's lawyers have been careful not to raise privacy arguments.
Instead, in a letter dated Oct. 10, 2005, Google lawyer Ashok Ramani objected to the Justice Department's request on the grounds that it could disclose trade secrets and was "overbroad, unduly burdensome, vague and intended to harass."
Q: Then why are privacy groups complaining? Your article includes I-am-outraged statements from the Electronic Privacy Information Center and the Electronic Frontier Foundation.
There are probably a few reasons. First, they'd say, private companies should not serve as convenient information repositories for trial attorneys hoping to win court cases. Second, it's not clear where this information will end up, and how far the protective order stretches.
Third, they simply believe that search engine companies are collecting too much information about their users. Google, Yahoo, AOL and Microsoft set cookies, collect personal information, and retain permanent logs that could be used to create a kind of dossier about a person's search habits.
Q: What will happen next?
The ball's in Google's court. The company will have to respond to the Justice Department's request, and then a federal judge in San Jose, Calif., will rule on the matter. Appeals are also a possibility.
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