March 14, 2006 4:00 AM PST
Google, feds face off over search records
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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.
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."
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)
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.
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