March 14, 2006 4:00 AM PST

Google, feds face off over search records

Google's attempts to fend off the government's request for millions of search terms will move to a federal court in San Jose, Calif., Tuesday morning.

In a closely watched case pitting prosecutors' demands against privacy, U.S. District Judge James Ware will hear arguments about whether the U.S. Justice Department's request is too broad and whether the request is necessary to help defend an antipornography law in court this fall.

On Jan. 18, the U.S. Justice Department asked Ware to order Google to comply with a subpoena. It demands a "random sampling" of 1 million Internet addresses accessible through Google's popular search engine, and a random sampling of 1 million search queries submitted to Google in a one-week period.

The outcome will determine whether the Justice Department will be able to use Google search terms in a social science research project that will be used this fall to defend an antipornography law. The Bush administration argues that criminal sanctions in the 1998 law--which has been placed on hold by the courts--are more effective ways to shield children than antiporn filtering software.

Though the Justice Department also demanded that Yahoo, Microsoft and America Online hand over similar records, Google was the only recipient that chose to fight the subpoena in court. The other companies have stressed that they turned over search terms and logs but not information that could be linked to individuals.

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The fate of search engine privacy, at least in the near future, could hinge on an antique and nearly indecipherable legal term: "processing services."

In general, attorneys can use a subpoena to obtain records from a company if the data would be relevant to a lawsuit. But a 1986 law called the Electronic Communications Privacy Act offers additional protections to users of remote computers that provide "processing services."

Google's language-translation service may do that. But what about the search engine? It's not exactly clear, and the courts have been little help in applying that language to the Internet.

Orin Kerr, a former prosecutor who is now a law professor at George Washington University, said Congress meant for the language to apply to outsourcing.

"Does eBay provide 'processing services' for its customers?" he asks in a 2004 law review article. "I think the better answer is 'no.' The legislative history indicates that 'processing services' refer to outsourcing functions. In the era before spreadsheets, a company might send raw data to a remote computing service and ask the service to crunch numbers to calculate its payroll."

But let's assume for the sake of argument that Google does offer "processing services." Here's what could happen when:

• Prosecutors seek Internet addresses.

An unusual twist in federal law (18 U.S.C. 2703) makes it easier for prosecutors to obtain Internet addresses from search terms than the other way around.

The law is remarkably permissive. It allows a "governmental entity" to demand "information pertaining to" search engine users by firing off a mere administrative subpoena--simply a piece of paper not even reviewed in advance by a judge. Information that can be requested includes name, address, Internet address, when connections were made, and credit card numbers if available.

Prosecutors are allowed to demand such information as long as it is "relevant and material to an ongoing criminal investigation." If the search company objects, however, a judge has the leeway to narrow the request if it is "unusually voluminous in nature or compliance with such order otherwise would cause an undue burden."

• Prosecutors seek search terms.

If the Justice Department already happens to have someone's Internet address and is seeking their search history, a slightly different procedure exists.

In that case, prosecutors must ask a judge in advance for an actual court order and claim that the results are "relevant and material to an ongoing criminal investigation."

In practice, of course, that's not terribly difficult to do.

An aside: This distinction assumes that search terms are "content," which federal law defines as information about the "substance, purport, or meaning of that communication." If they're not, only a subpoena--and no court order--is required.

• Attorneys seek records in civil suits.

A different set of rules applies to attorneys in a civil suit who aren't working for the government.

However, the rules almost certainly do not apply to search engines. They were aimed at preventing e-mail and similar providers (remember, this law was written in the era of CompuServe, BIX, and The Source) from sharing their customers' personal data with third parties.

Translation: A curious divorce attorney simply needs to send a subpoena to Google.

"These laws were written some time ago," says Lee Tien, a staff attorney at digital rights group Electronic Frontier Foundation in San Francisco. "They were careful in some places and not in others."

--Declan McCullagh

The government's request has raised eyebrows among privacy advocates and members of Congress, some of whom fear it could open the door to future fishing expeditions. Rep. Ed Markey, a Massachusetts Democrat, used the subpoena as justification for a new bill that would curb records retained by Web sites, and Sen. Patrick Leahy, a Vermont Democrat, has pressed Gonzales for details.

Google has objected by saying its search logs would not be relevant and its users' privacy could be at risk. "If Google is forced to compromise its privacy principles and produce to the government on such a flimsy request its search query and URL data, Google will, without a doubt, suffer a loss of trust among users," the company said in a brief filed Feb. 17.

The dispute has elevated the prominence of search privacy--and how divorce lawyers or employers in a severance dispute could gain access to the search terms that people have typed in.

CNET News.com conducted a survey last month of the four major search companies. It found that Google, Microsoft, Yahoo and AOL all said they had the ability to turn over a list of search terms, if they were given an Internet address.

Alberto Gonzales v. Google

Court documents reveal that the Justice Department has been pressuring Google for excerpts from its search logs for half a year. Prosecutors hope to use the excerpts to show that filtering software can't protect children online.

Government subpoena and Google's objection (186K pdf)

Motion to require Google to comply (660K pdf)

Declaration of Philip Stark, government statistics expert (1.1M pdf)

But when asked whether they have actually received such a request, only Microsoft actually answered the question. With the exception of the Justice Department subpoena for search terms without user identities last year, Microsoft said it has "not received either criminal or civil requests related to MSN Search data."

In an unusual twist, if the Justice Department does win, Google would likely face a second round of subpoenas from the American Civil Liberties Union for follow-up information. The ACLU is challenging the 1998 Child Online Protection Act, or COPA, which makes it a crime for a commercial Web site to post material that some jurors might find "harmful" to any minor who stumbled across it.

"If the government utilizes the information in any manner, we're very likely going to need to do follow-up discovery," ACLU attorney Aden Fine said in a telephone interview.

COPA's vague requirements and criminal sanctions have alarmed mainstream Web publishers and civil liberties groups, which have supported the ACLU's lawsuit. Plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News and the Internet Content Coalition. Founding members of the now-defunct Internet Content Coalition included CNET Networks (publisher of News.com), Adobe, Reuters New Media, Sony Online and The New York Times.

Philip Stark, a professor of statistics at the University of California at Berkeley, has been hired by the Justice Department to create a study showing that filtering software is flawed and COPA is necessary. "The government seeks this information only to perform a study, in the aggregate, of trends in the Internet. No individual user of Google, or of any other search engine, need fear that his or her personal identifying information will be disclosed," the government said in a brief filed last month.

Ware is no stranger to technology cases. He heard the Sex.com case in 2001, a spam lawsuit in 1998, and a legal spat between RealNetworks and Microsoft in 2004.

See more CNET content tagged:
subpoena, request, court, Google Inc., San Jose

19 comments

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MSN Accounts are subject to immediate search lending their ISP to municipal
This happens every day at your local library. Speaking from personnal experience having emails removed and rerouted from my past MSN account; closed March 4, 2006. Google has concerns.
Posted by Pop4 (88 comments )
Reply Link Flag
What's more distrubing to me than the case...
...against Google for subpeonas, is that the DOJ want to get the COPA law that was struck down before reinstated, which the law blatantly impedes free speech, and that every time this story gets brought up, only talk about the Google subpeonas gets any attention, and noone is paying attention that websites are heading for censorship this fall if the DOJ successfully gets the COPA act reinstated.
Posted by MisterFlibble (207 comments )
Reply Link Flag
The Fight for children
What are we suppose to do? Are we suppose to have some kind of program for our kids not to be indanger while there on the net? what if they go some were else an use a computer, for eg. there friends house. what do we do then?, put a camra on there head so we can see every thing? not likly! we need to set some kind of safty on the web were kids will only be able to access safty on the net.
Posted by JLenz23 (3 comments )
Reply Link Flag
What are we suppose to do ?
What are we suppose to do ? Nothing, What are "you" supposed to do ? What ever you see fit.

I do NOT want any of my monies spent by this government to raise your children. It is your responsibility to rais your child, not the government. It is your responsibility to know that you can trust the household that you are letting your child visit.

If you have concerns, ask the parents. ( Have you even MET the parents of your child's friends ?)
Posted by Sir Geek (114 comments )
Link Flag
It's not about the childred
The internet is never going to be a kid safe zone. Short of
pulling the plug and disconnecting the country from the rest of
the world, anyone that knows anything about the technology
knows that the U.S. can never control the information on a world
wide network.

The Feds fight with Google, IMO, is about politics and power.
The politicians want to be able to say they are doing something
to protect "the children" and the Feds don't like anyone saying
no when they decide they need to spy on whoever they want.

China is trying to control what their citizens can seen on the net
right now, but people find ways around their filters faster than
they can create new ones. I'm no hacker but I know several ways
to bypass anyone's network filters.

Teach your kids about the net the same as you teach them about
drugs. Follow some basic rules: Don't let them have a computer
in their room, and supervise them when they are online. And if
you want filters, buy one and install it on your personal
computer.

And when your children are not at home, pray you taught them
well.
Posted by rcrusoe (1305 comments )
Link Flag
No it starts...
By parents educating their kids to be good people, not low life scum.

Maybe instead of just say you can't do this, you go do that. Maybe if parents sat their kids down and explained to them why porn is not appropriate for them and that when they are old enough and ready it will be there should they decide to view it.

Frankly, I think the biggest danger comes from sites like MySpace and kids seeing naked people bofing like animals. It looks to me like people are just too up-tight about sex. When they should be up tight about kids getting tricked in to meeting adults thanks to sights like MySpace.

Parents need to educate their children. No you can't be with them all of the time and they do have to make choices on their own. If they make a mistake they and the parents have to pay the price. But, it was theirs and their parents fault not anyone elses.

We should not be creating laws that benefit the minority and shaft the majority and that seems to be exactly what the religous nut in the white house is trying to do. Both with this porn law and gay wedded bliss. It is wrong, plain and simple.

Shame people no longer have to take responcibility for their choices. Instead they expect everyone else to do it.

Robert
Posted by Heebee Jeebies (632 comments )
Link Flag
Google search and outsourcing...?
> Orin Kerr, a former prosecutor who is now a law professor at George
> Washington University, said Congress meant for the language to apply to
> outsourcing.
>
> "Does eBay provide 'processing services' for its customers?" he asks in a
> 2004 law review article. "I think the better answer is 'no.' The legislative
> history indicates that 'processing services' refer to outsourcing functions.
> In the era before spreadsheets, a company might send raw data to a remote
> computing service and ask the service to crunch numbers to calculate its
> payroll."
>
> But let's assume for the sake of argument that Google does offer "processing
> services." Here's what could happen when:

Haven't you ever seen a website containing a panel of "Ads by Google"?

I'm not particularly fond of the spread of such advertising on the web, and I don't choose to do business with Google by using AdSense myself, but it seems evident that quite a few people who want to put up a personal vanity site or blog or whatnot pay for it by placing an AdSense section rather than trying to negotiate individual promotional deals themselves.

Google's AdSense program outsources advertising based on search keywords, the user's cookies, and other data as available. Being able to associate a user's search history, the contents of their gmail.com account (if they have one), data from the Google toolbar (if used), is pretty comprehensive.
Posted by cswiger (1 comment )
Reply Link Flag
protecting our kids
Us pareants know what were supposed to do an yeah we may know the family but kids still tend to do things behind there back all im saying is yeah sure we can set up a parental program but kids also tend to out smart us people now endays. there never should of been allowed to put up any kind of adult stuff over the net if it was my choice i would go on the office net and delete all these non sense porn
Posted by JLenz23 (3 comments )
Reply Link Flag
Protect them from WHAT?????
<<never should of been allowed to put up any kind of adult stuff over the net if it was my choice>>

Thank god it is not your choice! What do you mean by "adult" content? Who decides what is and is not "adult". Do you really think that there is content on teh internet that is going to harm your children just by seeing it? LOL! Doesn't say much for you as a parent.
Posted by miketkrw (86 comments )
Link Flag
So why...
Is that everyone elses problem. If someones kids are lying, cheating, stealing and sneaking in to things there are not supposed to and the parents can't control them. Then that means the kids are criminals (or at least well on their way), the parents are pathetic and should never been allowed to breed. So why this is everyone elses problems. I have chosen not to have kids. If I want to look at porn without having to jump through a bunch of hoops I should be able to.

It is about time that people take responsibility for their own instead of placing it in everyone elses lap. This country is for the people, by people. Not for the pathetic by the pathetic which thanks to Bush is what has become.

Robert
Posted by Heebee Jeebies (632 comments )
Link Flag
This is a Hoax to create sympathy for Google
This story that the US gov is asking Google for data on the people using
Google & Google fighting it is a Hoax. It is the classic mind game.
It is the classic "Good Cop" "Bad Cop" game being played on the people.
It is intended to create sympathy for Google, and to keep Google in daily
news coverage.
But in fact Google is as much a part of the US gov as are CIA, NSA, etc.
Do you think for one second that US gov is spending 100s of Billions of
dollars to control what people say or see worldwide from 1000s of
US bases spread through out the world, that it then would need the
permission of Google to look at its data!
Come on, how naive do they think people are!
Hek under the Patriots act it just takes an order of the right person at the
Justice department to get copies of any data, from library to email
servers to any server, to put active lessoning devices anywhere they
want, etc. etc.
Posted by free_people (66 comments )
Reply Link Flag
Yes, I agree. Google &Yahoo are as bad as CIA.
I can tell you that from someone who lives in Europe and seen what disregard US government has for lives of the people, from the US plane that cut the cable on Gondola in Ski area in North of
Italy few years ago and killed like 40 people without anyone going to jail for it, to the unjust & barbaric invasion of Iraq that has killed like 1Million+ people, to kidnapping Italian citizens off Milan to take them to outside Italy, to US bases all over the Italy, that the US government does not need the permission of Google or Yahoo to eavesdrop on our searches, they can have it in a heart beat
and in fact I am sure that Google or Yahoo are as much part of the US government effort to control the world as are bases all
over Italy & Europe, etc.
So I as an IT professional and professor of Computer science am urging all my colleagues to find or finance a European based search engine, just like we created Linux & MySQL here in Europe.
Posted by caudio_roma (57 comments )
Link Flag
You only protect your kids from child pornography?
Protecting your kids from seeing child pornography? Shouldnt you be protecting them from seeing pornography in general?

The concept of this case is about protecting kids from becoming child pornography. Not viewing it, LOL, geez.
Posted by illpoint (6 comments )
Reply Link Flag
This has Nothing to Do with Child Porn
The provision of COPA that was blocked, attempted to force web hosts to verify aged to prevent minors from seeing "any" information that might be "harmful to minors".

Of course, that is what parents are for.
Posted by PzkwVIb (462 comments )
Link Flag
right to privacy
Where does Big Brother's reach stop? Do people no longer have a right to privacy? Thank you Google for standing up for your rights and our rights!
Posted by tracie101 (1 comment )
Reply Link Flag
The dangerous path we follow
I'm curious, if Google is so tied into the GOV, why is this story being KILLED on CNN, (where it's reduced to a footnote), Fox (where it's not mentioned) Cspan (where they dare not mention it) and MSNBC?

We're witnessing a horrible and audacious infringement upon freedoms and upon the basic decency of a safe and secure environment for data. The free press and free speech we've enjoyed has built this country, forged into a strong and noble force in the world. It has made a sanctuary for us and the world. But the very foundations that have been our black guard against this very criminalization are being destroyed. Our pillars are being attacked and with them, our sanctuary.

Imagine where the world is going once the only PRIVATE companies large enough to fight the Government are overthrown by these petty arguements and erroded by the mire of burocrocy and beaten into a bland corporate pulp that merely rolls over whenever an order is given.

That is not the America we were to be. We are becoming an America plagued by fear and reigned to the failings of small men without passion. Men who attack the very foundations of enterprise and self determination. It is our heart and daring that makes us strong. Americans should be defined by the ability to secure common decency beyond any bureaucratic law. This is with a view that the individual is sacred and justice will be carried not as an ultimate force to bludgeon our people, but to guide and mold our SOCIETY. To risk and ruin the freedoms of society in order to condemn a few individuals is an atrocity to the American heart and tradition.

We need our private enterprises to be as secure as our skyscrapers. We need our government to protect our rights as citizens and businesses. Do not engage in battles to destroy them. Once those are gone, everything else will follow. You will have no sanctuaries against the tyrannies of this world.

Please, look to our fathers. . . Jefferson, Franklin, Hamilton. . . please understand that you can not cut out your heart for fear of its beating and expect the body to live.
Posted by wysiwyg22 (41 comments )
Reply Link Flag
 

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