March 14, 2006 10:44 AM PST
Judge to help feds against Google
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ACLU attorney Aden Fine told Ware that his organization would "certainly need to know" additional information about how Google's search engine works, in order to rebut the Justice Department study. That information, he said, would include topics such as the number of servers and the number of Web pages indexed.
If Ware follows through with his suggestion that excerpts from Google's search index may be permissible to hand over--but search terms will not be--that would essentially eliminate privacy worries.
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)
Google has cited privacy concerns in court documents and said Tuesday that the Electronic Communications Privacy Act, or ECPA, sets strict rules for obtaining access to search terms that the government has not followed.
"A civil subpoena by the government is not one of the methods that ECPA lists" as a permissible mechanism for obtaining search results, said Gidari, a partner in the Seattle office of the Perkins Coie law firm.
Deciding to grant part of the Justice Department's request--effectively splitting the difference--would permit Ware to avoid some of these thorny privacy concerns. It would also avoid the possibility of setting a precedent that could create new hurdles for prosecutors in future criminal investigations.
Ware also questioned whether Justice Department attorneys would actually keep search terms confidential, especially incendiary ones that could prove useful in future criminal or antiterrorism investigations.
"Are you telling me that the government would ignore that and not use it?" Ware asked, offering as an example searches involving people's names coupled with Osama bin Laden.
Search data obtained from Google by the Justice Department is "not shared with anyone else," replied Joel McElvain, an attorney for the Justice Department. He said that would include "federal law enforcement officers."
McElvain also argued that because AOL, Microsoft and Yahoo had willingly complied, it shouldn't be too difficult for Google to do the same. "The other search engines have been able to do this fairly quickly and easily," he said.
CNET News.com conducted a survey last month of the four major search firms. 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.
But when asked whether they have actually received such a request, only Microsoft 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."
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 last month.
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