Judge: Google must give feds limited access to records

The 21-page order (click here for PDF), issued Friday in San Jose, Calif., by U.S. District Judge James Ware, represented little change from his stance at a hearing earlier this week.

Ware had indicated he would grant the U.S. Justice Department access to a portion of Google's index of Web sites but said he was hesitant to ask for users' search terms because of worries about the "perception by the public that this is subject to government scrutiny" when they type search terms into Google.com.

Ware said in his Friday order that the government demonstrated a "substantial need" for Google's random URL sample, which it plans to run through filtering software to test the software's antipornography filtering prowess as the DOJ prepares to defend a child-protection law in court. But the DOJ did not meet that standard regarding search queries, Ware said.

He noted that 50,000 URLs must be turned over, unless both parties agree to an alternative scenario on or before April 3.

Neither Google nor Justice Department representatives could be reached immediately for comment Friday.

Google associate general counsel Nicole Wong said in a post at the company's blog on Friday evening that the search giant would comply "fully" with the judge's order. "What his ruling means is that neither the government nor anyone else has carte blanche when demanding data from Internet companies," she wrote, calling it "a clear victory for our users and for our company."

The decision drew cautious praise from a privacy advocate.

"It's a well-reasoned decision, and it does minimize privacy and civil liberties implications," said Beth Givens, director of the Privacy Rights Clearinghouse.

Givens went on to say that she still doesn't think the government needs Google's data: "They can design a research study that would accomplish much the same. It's a bad precedent for the government to be strong-arming search engine companies for such sensitive data."

A 'scaled-down' request
The Bush administration's request is part of its campaign to defend the 1998 Child Online Protection Act, which faces a court challenge from the American Civil Liberties Union. That law restricts the posting on commercial Web sites of sexually explicit material deemed "harmful to minors," unless it's made unavailable to the youngsters. The ACLU argues that Web sites cannot realistically comply with such requirements and that the law violates the right to freedom of speech mandated by the First Amendment.

A divided U.S. Supreme Court in 2004 stopped short of striking down COPA and instead decided that a full trial was needed to determine whether the law is constitutional. Those proceedings are scheduled to begin in Philadelphia in October.

Federal prosecutors said in court filings that Google's compliance with the DOJ subpoena is necessary to prove this fall that the 1998 law is "more effective than filtering software in protecting minors from exposure to harmful materials on the Internet."

The case against Google began Jan. 18, when the Justice Department asked Ware to order the company to comply with a subpoena issued last August. The subpoena called for a "random sampling" of 1 million Internet addresses accessible through Google's search engine and 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.

That significantly "scaled-down" request helped convince Ware that the request was reasonable, he wrote in Friday's order. He said the random URLs appeared to be "relevant" to the issues in the government's case, though he admitted the government had been vague about its purposes for studying the URL samples. "The court gives the government the benefit of the doubt," he wrote.

On the other hand, Ware wrote, the government's request for search queries may have privacy implications, particularly if users were to search for personal information or engage in "vanity searches" of their own names.

Ware was also concerned about the subpoena's potential for leaking Google's trade secrets. He said he worried that even a narrow sample of Google's index and query log could "act as the thin blade of the wedge in exposing Google to potential disclosure of its confidential information."

"I don't think giving a random sampling of those is going to reveal a lot of their trade secrets," said attorney Andy Serwin, whose practice includes Internet privacy at the firm of Foley & Lardner in San Diego. But by granting the government much less data than the agency originally wanted, the ruling "is much more favorable toward protecting users' privacy," he said.

Google had emphasized in its arguments that the government's request was overreaching. The company's lawyer, Al Gidari, stressed at this week's court appearance that there are alternative venues for the Justice Department's social science research, such as Alexa Internet, a site owned by Amazon.com that offers Web analytics services that can produce similar information.

In the courtroom on Tuesday, Ware said he was concerned that if he granted the request, "a slew of trial attorneys and curious social scientists could follow suit." But in Friday's order, he said he did not see any "technical burden" that could serve as an excuse for not complying with the subpoena.

Privacy debate
Google had also built its defense on privacy concerns. Gidari said Tuesday that the Electronic Communications Privacy Act, or ECPA, sets strict rules for obtaining access to search terms, rules the government has not followed. Ware chose not to weigh in on ECPA matters in his order.

The Justice Department has forcefully dismissed all privacy concerns, saying that any search data obtained from Google would not be shared with anyone else, including federal law enforcement officers who could potentially find the information useful for investigations.

The government has also said it is not interested in getting information that could be used to identify individuals, but, rather, anonymous data about search patterns intended to help bolster its case against antipornography filters.

Last year, Microsoft, Yahoo and AOL received subpoenas identical to the original DOJ request. Those companies chose to comply rather than fight the request in court. They have all emphasized that they turned over search terms and logs but not information that could be linked to individuals.

The dispute has managed to raise eyebrows among privacy advocates and politicians alike. Rep. Ed Markey, a Massachusetts Democrat, used the subpoena as justification for a new bill that would curb records retained by Web sites, and Sen. Patrick Leahy, a Vermont Democrat, pressed Attorney General Alberto Gonzales for details.

At the same time, Google's fight with the DOJ has caused some head-scratching because the search giant chose to cooperate with the Chinese government's demands to censor searches on its Google.cn site.