International Herald Tribune
01-21-2006
In its brief history, Google has made ''Don't be evil'' an operating principle, even as it has come to endure criticism over its forays into businesses beyond Web searches and its compliance with China's efforts to censor the Web. Now, the company has become an opponent of U.S. government in a battle against pornography. The U.S. Justice Department asked a federal judge Wednesday to compel Google to turn over records on millions of its users' search queries as part of the government's effort to uphold an online pornography law.Google has been refusing the request since a subpoena was issued last August, even as its three main competitors agreed to comply, according to court documents made public in the past week. Google asserts that the request is unnecessary, overly broad, would be onerous to comply with, would jeopardize its trade secrets and could expose identifying information about its users.The dispute with Google comes as the government is moving aggressively on several fronts to obtain data on Internet activity to achieve its law-enforcement goals, from domestic security to the prosecution of online crime. Under the anti-terrorism law known as the USA Patriot Act, for example, the Justice Department has demanded records on library patrons' Internet use.Those efforts have encountered resistance on privacy grounds.The government's move in the Google case, however, is different in its aims. Rather than seeking data on individuals, it says, it is trying to establish a profile of Internet use that will help it defend the Child Online Protection Act, a 1998 law that would impose tough criminal penalties on individuals whose Web sites carried material deemed harmful to minors.The law has faced repeated legal challenges. Two years ago, the Supreme Court upheld an injunction blocking its enforcement, returning the case to a district court for further examination of Internet-filtering technology that might be an alternative in achieving the law's aims. The government's motion to compel Google's compliance was filed on Wednesday in U.S. District Court in San Jose, California, near Google's headquarters. The subpoena and the government's motion were reported on Thursday by The San Jose Mercury News.In addition to records of a week's worth of search queries, which could amount to billions of search terms, the subpoena seeks a random list of a million Web addresses in Google's index.Charles Miller, a spokesman for the Justice Department, said on Thursday that three Google competitors in Internet search technology America Online, Yahoo and MSN, Microsoft's online service had complied with subpoenas in the case.Miller declined to say exactly how the data would be used, but according to the government's legal filings, the data would help estimate the prevalence of online material that could be deemed harmful to minors and the effectiveness of filtering software in blocking it.Opponents of the pornography law contend that such software could protect minors effectively enough to make the law unnecessary.The government's motion calls for Google to comply with its subpoena within 21 days of court approval. Although the government has modified its demands in talks with Google since last year, Google made it clear on Thursday that it would continue to fight. ''Google is not a party to this lawsuit, and their demand for information overreaches,'' said Nicole Wong, the company's associate general counsel, referring to government lawyers. ''We had lengthy discussions with them to try to resolve this, but were not able to, and we intend to resist their motion vigorously.''Philip Stark, a statistics professor at the University of California at Berkeley hired by the Justice Department to analyze search-engine data in the case, said in legal documents that search-engine data provides crucial insight into the information that exists on the Internet. ''Google is one of the most popular search engines,'' he wrote in a court document related to the case. Thus, he said, Google's databases of Web addresses and user searches ''are directly relevant.''But Danny Sullivan, editor of Search Engine Watch, an online industry newsletter, questioned the need for such a subpoena.''Is this really something the government needs Google to help them with?'' he said. ''They could go create their own searches.''Google appears to be acting alone in its resistance.MSN declined to speak directly to the case but released a statement saying it generally ''works closely with law enforcement officials.''Mary Osako, a Yahoo spokeswoman, said the company had complied with the subpoena ''on a limited basis.'' Andrew Weinstein, a spokesman for AOL, said that company gave the Justice Department a generic list of anonymous search terms from a one-day period.Susan Crawford, a professor at Cardozo School of Law in New York, said she could understand why the companies complied.''There's this real perception that if you're not with us you're against us,'' she said. ''So the major companies will cooperate with enormously burdensome requests just to avoid future vengeance being wreaked on them'' by the Justice Department.''Google and its rivals have also been criticized for their business practices in China, where Google and MSN have filtered keywords like ''human rights'' and ''democracy'' out of their search-engine results.While its court filings in resisting the Justice Department subpoena have emphasized the burden of compliance and threat to its trade secrets, Google also pointed to a chilling effect on its customers.''Google's acceding to the request would suggest that it is willing to reveal information about those who use its services,'' it said in an letter to the Justice Department in October. ''This is not a perception Google can accept. And one can envision scenarios where queries alone could reveal identifying information about a specific Google user, which is another outcome that Google cannot accept.''For its part, the Justice Department said the data received from Google's rivals showed that the search query information did not contain ''any additional personal identifying information'' and that trade secrets would be protected under procedures put in place by the trial court.''Google thus should have no difficulty in complying in the same way as its competitors have,'' the motion said.Critics of the effort to subpoena Google say the immediate issue is not pornography or privacy, but whether the government has established its need for the information.''The government's attitude, apparently, is that it's entitled to information without justification,'' said Aden Fine, an attorney for the American Civil Liberties Union, which has led the fight against the 1998 pornography law. ''Like everyone else in litigation, they need to justify their request for information.''
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