Judge to help feds against Google

A federal judge says he would grant federal prosecutors at least some of their records requests. The buzz: Should Google be forced to hand over data? Photo: Google at court

SAN JOSE, Calif.--A federal judge hearing arguments in the Department of Justice's records fight with Google said Tuesday that he would grant federal prosecutors at least part of their request for excerpts from the search giant's massive database.

U.S. District Judge James Ware said he intends to release his decision "very quickly," and that he might give the Justice Department access to a portion of Google's index of Web sites, but not to its users' search terms.

Google counsel

Ware said he was reluctant to give the Justice Department everything it wanted because of the "perception by the public that this is subject to government scrutiny" when they type search terms into Google.com.

On Jan. 18, the Justice Department asked Ware to order Google to comply with a subpoena. It demands a "random sampling" of 1 million Internet addresses accessible through Google's search engine, and a random sampling of 1 million search queries submitted to Google in a one-week period.

During negotiations, the Justice Department narrowed its request to 50,000 URLs and said it would look at only 10,000. It also said it wanted 5,000 search queries and would look at 1,000.

Ware said that the reduced demand, coupled with the government's "willingness to compensate Google" for up to eight days of its programmers' time, had convinced him to grant the Justice Department at least some of what it had requested.

During the hearing, which lasted about 90 minutes, Google's lawyer, Al Gidari, stressed that there is an alternative for the Justice Department's social science research, which is designed to show the flaws of filtering software and defend an antipornography law in court.

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Video: Google, ACLU respond to judge
Hear from ACLU attorney Aden Fine and Google attorney Al Gidari after the federal hearings Tuesday in San Jose, Calif.

"They can go to Alexa," Gidari said. "They have 4 billion URLs."

Gidari said that Alexa Internet, which is owned by Amazon.com, is a site that offers Web analytics services that can produce similar information "without entangling us in litigation going forward."

That point was raised repeatedly by Ware, who seemed concerned that if he granted the request, "a slew of trial attorneys and curious social scientists could follow suit."

"Now Google could face hundreds of university professors (saying), 'I've got a study I'd like you to conduct,'" Ware said.

The outcome will determine whether the Justice Department will be able to use Google search terms in a social science research project that will be used this fall to defend an antipornography law. The Bush administration argues that criminal sanctions in the 1998 law--which has been placed on hold by the courts--are more effective ways to shield children than antiporn-filtering software.

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Though the Justice Department also demanded that Yahoo, Microsoft and America Online hand over similar records, Google was the only recipient that chose to fight the subpoena in court. The other companies have stressed that they turned over search terms and logs but not information that could be linked to individuals.

The dispute has elevated the prominence of search privacy, touching on how divorce lawyers or employers in a severance dispute could gain access to search terms that people have typed in. It's also raised eyebrows because Google chose to cooperate with a demand by the Chinese government to censor searches on the company's Google.cn site.

If the Justice Department does win this case, Google would likely face a second round of subpoenas from the American Civil Liberties Union for follow-up information. The ACLU is challenging the 1998 Child Online Protection Act, or COPA, which makes it a crime for a commercial Web site to post material that some jurors might find "harmful" to any minor who stumbles across it.

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