A U.S. federal judge says he will probably give the Department of Justice some of the search data it has asked for from Google, now that government attorneys have greatly reduced the scope of their request.
Justice Dept. lawyers were in court in San Jose yesterday, arguing that Google should be made to comply with an August 2005 subpoena for search data. The DOJ wants to use that information to buttress its case for reinstating a 1998 law shielding children from adult content. Its intent is to show that pornography on the Web is so prevalent that it can’t be filtered with software and will require a legal solution.
Google had opposed that subpoena, arguing that compiling the data would be a burden to the company, slowing its service to users, and that revealing the information would make public some trade secrets about the size and operation of its Web indexing functions that could hurt its business prospects.
After 90 minutes spent hearing lawyers for both the DOJ and Google present their arguments, Judge James Ware of the U.S. District Court for the Northern District of California said, “It is my intent to grant some relief to the government.” He said he would issue a written decision in the case “very quickly.”
The biggest revelation in yesterday’s testimony was that government lawyers had cut down their request for Google search data yet again, to 50,000 Web addresses and 5,000 search terms. That’s a far cry from the original super-sized DOJ request for all the URLs in Google’s index and all search terms entered for June and July 2005.
It’s also smaller than a renegotiated request for random samplings of 1 million Web pages from the Google index and 1 million search terms from a typical week. MSN, Yahoo! and AOL all agreed to supply that level of data from their search operations, it was revealed in January.
Justice Department attorney Joel McElvain reportedly told the court that 10,000 of the Web URLs and 1,000 of the search keywords would be used in the Department’s case to restore the Child Online Protection Act (COPA), which the U.S. Supreme Court blocked in 2004. A federal court in Philadelphia has slated that case for a hearing in October.
When asked by Judge Ware if the DOJ had not already received enough data from other search engines to make its porn case, McElvain admitted that it probably had but added that “the study would be improved with Google’s data.”
According to press reports, Judge Ware made a point of mentioning his concern over the DOJ request for a random sampling of search requests. The Associated press said he wanted to avoid creating the impression that government officials could mine the data kept by Internet search engines and other large databases for surveillance use. Like the information provided by its rivals, Google search data would be scrubbed of personally identifying markers.
“We’re very encouraged by the judge’s thoughtful questions and comments,” said Nicole Wong, associate general counsel for Google, in an e-mail statement issued after the hearing. “They reflected our concerns about user privacy and the scope of the government’s subpoena request.”
Andrew Klungness, an attorney with Bryan Cave LLP who specializes in Internet and e-commerce law, said Google’s compliance may have more significance than just the digital ammunition it adds to the DOJ’s anti-pornography case.
“With the Patriot Act and other laws, the government is trying hard to swing the pendulum toward having pretty broad rights to get the information it needs,” he said. “In many ways, this may be an attempt by the government to set a precedent in this regard with respect to Internet service providers.”
Last Friday, the Justice Department requested that Google be held to a three-week timetable for supplying any search data it was prepared to supply, so that government lawyers can make a May 3 deadline for expert evidence imposed by the Philadelphia judge.
The American Civil Liberties Union is a participant in that case, hoping to prevent the reinstatement of COPA on constitutional grounds. Last month, the ACLU filed a brief with the San Jose court that said that if government attorneys were given access to Google search data, the ACLU would also sue for detailed information about Google’s search processes. For example, the filing said the ACLU would want to know “how many total URLs Google has in its database, how often Google updates its database, how and where Google crawls the Web to locate URLs for its database, how many different servers those URLs are stored on, where those servers are located, and how many URLs there are within each server.”
