February 21, 2006 11:30 AM PST

Justice Department's assault on Google to backfire?

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settle, or the judge could rule on unrelated grounds.

But if the federal courts adopt Google's interpretation of the law, the FBI and other police agencies would find it more difficult to obtain records of search terms in criminal investigations. Similar searches, such as those performed on databases like Lexis-Nexis or Westlaw, or on news sites such as those of The New York Times and Yahoo, would also receive higher privacy protection.

Lawyers in civil cases, such as divorce attorneys and employers in severance disputes, would also encounter a new legal roadblock when seeking search terms.

"That is a good thing for privacy and I think the correct application of the law," says Kevin Bankston, an attorney at the Electronic Frontier Foundation, a digital-rights group in San Francisco.

A spokesman for the Justice Department declined to comment Tuesday on whether the subpoena could backfire on prosecutors, saying the matter was under litigation.

Ohm, the former Justice Department prosecutor, said any federal appeals court that makes a sweeping proclamation about ECPA in a civil case is the government's "nightmare scenario" because such an interpretation of the law could make criminal investigations more difficult.

If that happens in the Google subpoena litigation, Ohm said, "Who knows? You may see calls for new legislation."

This case is unusual because it was brought by the Justice Department's civil division, which is hoping to use the search terms for social-science research instead of as part of a criminal investigation. The department's ECPA specialists in the Computer Crime and Intellectual Property Section would not normally have been involved, Ohm said.

ECPA says that anyone offering an "electronic communication service to the public" generally may not divulge the contents of a communication except with the consent of the user or to a law enforcement agency that has a search warrant or a court order--instead of just a subpoena.

One twist in ECPA, however, could doom the Justice Department's pursuit of the search terms of Google's users. A search warrant is usually authorized only for criminal investigations, and ECPA's court order requirement also specifies an "ongoing criminal investigation."

But the Justice Department's defense of the Child Online Protection Act in a lawsuit brought by the American Civil Liberties Union is a civil dispute, not a criminal investigation.

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8 comments

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This is good
Google shouldn't have to hand over this type of information. Especially if the general public doesn't want the government to have it (which a poll showed that most people side with Google). Since our government is (ideally) powered by the people, then there is no reason to force this.

However, I think we fail to realize that by our government borrowing money from other countries and business (the national debt) they no longer feel the need to listen to the general public, becacuse honestly, it isn't our money and who are we to say where it goes? With enough outside funding the government will do whatever they please. If they are forced to rely on the american people, then they will have to comply with our desires (in theory). But the concept of Rational Ignorance has become so obvious in the minds of most people that we have carelessly given up our influence in our own political system. How sad....
Posted by coryschulz (326 comments )
Reply Link Flag
I mostly agreee, but.....
The US government doesn't borrow money from other countries. The debt that everyone hears about is to it's own people, who "lend" their money in the form paying taxes. So yes, it is our money, it is our government. Don't be fooled for one second to think any differently. At it's very basic ideal, the US government is supposed to be "for the People, by the People." The biggest problem is, most of the government officials seem to think that the "People" should have very deep pockets in order to be heard. They seem to forget that all people should be represented with concience, and without predudice. That doesn't seem to be the case in many instances where politicians tend to catter to big business (and deep pockets), while squashing private citizens rights and/or resources. This is so wrong on so many levels, I'm not going much further with it.

That being said, I think Google has a right to stand up and say no. As a content provider myself, I'm glad to see someone pull the riegns back and refuse to cowtow to stupid requests. The government is not above the law, and they need to realize this.
Posted by fireball74 (80 comments )
Link Flag
The US govt & DOJ has no right to European searches.
If I remember correctly (could be that I'm entirely wrong) but the US govt and DOJ has no right to any information that European Internet users create while using the services that Google has. In order for DOJ to have access to this information, they would have to have an agreement with the European Uninon and the country in question. Or how does this thing go?
Posted by euroresident (1 comment )
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A quote from the past presidents
"In this present crisis, government is not the solution to our problem; government is the problem." (January 20, 1981) (Ronald Reagan)

"We know what works: freedom works. We know what's right: freedom is right. We know how to secure a more and just and prosperous life for man on earth: through free markets, free speech, free elections and the exercise of free will unhampered by the state." (January 20, 1989) (George H.W. Bush)

"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor." (December 7, 1903) (Teddy Roosevelt)

Oh well, such is life, that Gonzales seeks to operate both outside his oath of office and the congress of the United States and it's constitution!
Posted by heystoopid (691 comments )
Reply Link Flag
Google should just pretend the US gov't is the Chinese gov't
Google should just pretend the US government was really the Chinese government. They would cooperate then. Google has no problem with helping to oppress a billion people. But they have a problem helping the US government. Google provides links and searches for child porn, something they and their defenders deny. These sites don't have adult women in pigtails pretending to be children. They have girls who look like they're 6, 8, and 10 and they're being molested. These are the kinds of criminals that Google is protecting. They are also helping others to be criminals simply by downloading those images.
Posted by lingsun (482 comments )
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Uninformed
You, sir, are uninformed. Haven't you ever heard the phase "don't shoot the messenger?" If one wants to erase child porn, it will not happen if we erase the links, why those links provide the very evidence of child pornography vital to its eradication. History has shown that censorship simply fails to accomplish its mandate, time and again. It is a short term patch up to a larger problem.

The above is said without even treading on the larger issue: free speech. While I am no advocate for child pornography, I must ask: how much longer till it is not pornography the government disdains, but an idea or an opinion? In my view, if this censorship case succeeds (and it didn't begin with Google, by the way) we will have seen simply one more shove out of a series of pushes down the ever so slippery slope of tyranny. Capitalize on the fears and horrors shared by the majority of individuals first, the prosecutors reckon, as once the precedence exists, further encroachment is made that much easier. In conclusion, I echo Boards of Canada: If you can be told what you can see or read, then it follows that you can be told what to say or think. Defend your constitutionally protected rights, no one else will do it for you.
Posted by nhandler (79 comments )
Link Flag
ya....
First question, do you have any Idea what the actual issue is? This has nothing to do with child porn. It has to do with the government testing the effectiveness of their child protection act.

2nd question, are you familiar with the laws of the land that protect us from unlawful search and seizure? The government has no rights to know my searches until it can prove that I am doing something wrong.

Crack open a book.
Posted by Bob Brinkman (556 comments )
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