SAN JOSE, CA – US District Court Judge James Ware said Tuesday that he intends to grant federal prosecutors at least a portion of their request for data contained in Google’s enormous database of search records.Ware said he intends to issue his decision “very quickly,”N and that he would likely give the Department of Justice access to portions of the company’s index of websites and search responses, but not to the actual search terms input by Google users.
Ware added that he is hesitant to give the DOJ all the data it demanded in its subpoena because doing so could create a perception in the public that when surfers use Google, their searches would be “subject to government scrutiny.”
In January, the DOJ asked Ware to compel Google to comply with their subpoena, which (among other things) seeks a “random sampling” of one million addresses accessible through use of Google’s search engine, and another random sampling of one million search queries entered into Google in a week-long period.
In subsequent negotiations, the DOJ reduced its request to 50,000 URLs, and said their researchers would look at only 10,000. The DOJ also agreed to reduce the number of search queries requested to 5,000 and that they would look at only 1,000 such queries.
Ware indicated that the reduced demands from the DOJ, along with the government’s willingness to compensate Google for up to eight days of its programmers’ labor time, convinced him to grant the DOJ’s request at least in part.
The DOJ is seeking the Google data for research being done in support of an effort to reinstate the Child Online Protection Act (COPA), which was originally voted into law in 1998. The Supreme Court has twice upheld injunctions preventing the enforcement of COPA, but never struck the law down outright as unconstitutional, instead referring the matter back to a lower court for full adjudication.
Supreme Court Justice Anthony M. Kennedy wrote for the majority in the 5-4 decision upholding the latest injunction in June 2004, noting that filtering technology had improved since COPA was first penned in 1998 and that such filters are capable of screening out material posted to foreign-hosted websites, which cannot be targeted by U.S. law.
“Promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished,” Kennedy wrote for the majority.
At Tuesday’s hearing, Google attorney Al Gidari asserted that there are alternative sources for the kind of information the government seeks for their research.
“They can go to Alexa,” Gidari said. “They have four billion URLs.”
Gidari noted that Alexa Internet, a company owned by Amazon.com, offers web analytical services that can provide similar data “without entangling us in litigation going forward.”
According to sources sitting in at the hearing, the same point was raised by Ware on several occasions, who stated his concern that if he granted the DOJ’s request “a slew of trial attorneys and curious social scientists could follow suit.”
Other companies, including Yahoo!, AOL, and Microsoft have already complied with similar subpoenas from the DOJ, something that DOJ prosecutors have noted repeatedly in court documents, oral arguments, and public comment.
“The other search engines have been able to do this fairly quickly and easily,” said Joel McElvain, attorney for the DOJ, adding that there was no reason why Google couldn’t follow suit.
In response to privacy concerns, especially regarding search terms submitted by Google users, McElvain said data obtained from Google is “not shared with anyone else” including federal law enforcement officers.
Google remains steadfast in its opposition to handing over the subpoenaed data to the DOJ, however, and asserted at Tuesday’s hearing that the Electronic Communications Privacy Act sets specific criteria for getting access to search terms, and that the government has not followed these rules.
Earlier this month, Google co-founder Sergey Brin told a group of industry analysts that cooperating with the government’s subpoena “is a slippery slope and it’s a path we shouldn’t go down.”
