February 21, 2006 11:30 AM PST

Justice Department's assault on Google to backfire?

The U.S. Department of Justice's attempt to compel Google to divulge millions of search records could backfire on police and prosecutors.

If Google convinces California courts that a federal privacy law protects Internet users' search terms from a subpoena, it would become more difficult for law enforcement to seek such records in future criminal investigations, legal experts are saying.

That's "absolutely" a concern, said Paul Ohm, a former Justice Department prosecutor who now teaches at the University of Colorado at Boulder. "There's a lot of precedent for that kind of thing."

In Google's written response to the Justice Department's subpoena (click here for PDF), filed with a San Jose, Calif., court on Friday, the search company argued that a 1986 privacy law means that it "cannot disclose the contents" of search terms based on a subpoena. A subpoena is a letter from a prosecutor sent without a judge's prior approval or review.

That law, called the Electronic Communications Privacy Act, or ECPA, provides potent legal safeguards for "electronic communication services." Google said that because of features it offers, such as the ability to send news alerts, it qualifies as such a service; the search terms of its users are therefore legally protected, it argued.

"It is time for the government to declare whether search terms are covered by ECPA," said Al Gidari, an attorney at Perkins Coie who co-authored Friday's brief on behalf of Google. "It makes no difference, in our view, that the government wants anonymous search queries. (Its argument) would allow them to search e-mail so long as we removed the customer names."

Last month, the Justice Department asked a judge to force Google to hand over a random sample of 1 million Web pages from its index, along with copies of a week's worth of anonymous search terms, to aid in the Bush administration's defense of an Internet pornography law. U.S. District Judge James Ware has scheduled a hearing for March 13.

It's not clear how often search terms are used in criminal investigations. One North Carolina man was found guilty of murder in November in part because he Googled the words "neck," "snap," "break" and "hold" before his wife was killed. In a CNET News.com survey published this month, Google, America Online, Microsoft and Yahoo declined to answer whether they had received requests for search records from police.

The Justice Department subpoena normally would have been a routine matter, and AOL, Microsoft and Yahoo voluntarily complied with similar requests. But Google's resistance sparked a furor over privacy, with Sen. Patrick Leahy, a Vermont Democrat, asking the Justice Department for details. A bill announced in the House of Representatives also would require Web sites to delete information about visitors.

There's no guarantee, of course, that ECPA will be decisive in this case: The Justice Department and Google could

CONTINUED: ECPA's unusual legal twist…
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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 )
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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 )
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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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