Justice Department's assault on Google to backfire?

If court rules that search terms are protected by privacy laws, criminal investigations could get tougher.

The U.S. Department of Justice's attempt to compel Google to divulge millions of search records could backfire on police and prosecutors.

If Google convinces California courts that a federal privacy law protects Internet users' search terms from a subpoena, it would become more difficult for law enforcement to seek such records in future criminal investigations, legal experts are saying.

That's "absolutely" a concern, said Paul Ohm, a former Justice Department prosecutor who now teaches at the University of Colorado at Boulder. "There's a lot of precedent for that kind of thing."

In Google's written response to the Justice Department's subpoena (click here for PDF), filed with a San Jose, Calif., court on Friday, the search company argued that a 1986 privacy law means that it "cannot disclose the contents" of search terms based on a subpoena. A subpoena is a letter from a prosecutor sent without a judge's prior approval or review.

That law, called the Electronic Communications Privacy Act, or ECPA, provides potent legal safeguards for "electronic communication services." Google said that because of features it offers, such as the ability to send news alerts, it qualifies as such a service; the search terms of its users are therefore legally protected, it argued.

"It is time for the government to declare whether search terms are covered by ECPA," said Al Gidari, an attorney at Perkins Coie who co-authored Friday's brief on behalf of Google. "It makes no difference, in our view, that the government wants anonymous search queries. (Its argument) would allow them to search e-mail so long as we removed the customer names."

Last month, the Justice Department asked a judge to force Google to hand over a random sample of 1 million Web pages from its index, along with copies of a week's worth of anonymous search terms, to aid in the Bush administration's defense of an Internet pornography law. U.S. District Judge James Ware has scheduled a hearing for March 13.

It's not clear how often search terms are used in criminal investigations. One North Carolina man was found guilty of murder in November in part because he Googled the words "neck," "snap," "break" and "hold" before his wife was killed. In a CNET News.com survey published this month, Google, America Online, Microsoft and Yahoo declined to answer whether they had received requests for search records from police.

The Justice Department subpoena normally would have been a routine matter, and AOL, Microsoft and Yahoo voluntarily complied with similar requests. But Google's resistance sparked a furor over privacy, with Sen. Patrick Leahy, a Vermont Democrat, asking the Justice Department for details. A bill announced in the House of Representatives also would require Web sites to delete information about visitors.

There's no guarantee, of course, that ECPA will be decisive in this case: The Justice Department and Google could

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