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

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
6 min read
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.

ACLU attorney Aden Fine told Ware that his organization would "certainly need to know" additional information about how Google's search engine works, in order to rebut the Justice Department study. That information, he said, would include topics such as the number of servers and the number of Web pages indexed.

If Ware follows through with his suggestion that excerpts from Google's search index may be permissible to hand over--but search terms will not be--that would essentially eliminate privacy worries.

Alberto Gonzales v. Google

Court documents reveal that the Justice Department has been pressuring Google for excerpts from its search logs for half a year. Prosecutors hope to use the excerpts to show that filtering software can't protect children online.

Government subpoena and Google's objection (186K pdf)

Motion to require Google to comply (660K pdf)

Declaration of Philip Stark, government statistics expert (1.1M pdf)

Google has cited privacy concerns in court documents and said Tuesday that the Electronic Communications Privacy Act, or ECPA, sets strict rules for obtaining access to search terms that the government has not followed.

"A civil subpoena by the government is not one of the methods that ECPA lists" as a permissible mechanism for obtaining search results, said Gidari, a partner in the Seattle office of the Perkins Coie law firm.

Deciding to grant part of the Justice Department's request--effectively splitting the difference--would permit Ware to avoid some of these thorny privacy concerns. It would also avoid the possibility of setting a precedent that could create new hurdles for prosecutors in future criminal investigations.

Ware also questioned whether Justice Department attorneys would actually keep search terms confidential, especially incendiary ones that could prove useful in future criminal or antiterrorism investigations.

"Are you telling me that the government would ignore that and not use it?" Ware asked, offering as an example searches involving people's names coupled with Osama bin Laden.

Search data obtained from Google by the Justice Department is "not shared with anyone else," replied Joel McElvain, an attorney for the Justice Department. He said that would include "federal law enforcement officers."

McElvain also argued that because AOL, Microsoft and Yahoo had willingly complied, it shouldn't be too difficult for Google to do the same. "The other search engines have been able to do this fairly quickly and easily," he said.

CNET News.com conducted a survey last month of the four major search firms. It found that Google, Microsoft, Yahoo and AOL all said they had the ability to turn over a list of search terms, if they were given an Internet address.

But when asked whether they have actually received such a request, only Microsoft answered the question. With the exception of the Justice Department subpoena for search terms without user identities last year, Microsoft said it has "not received either criminal or civil requests related to MSN Search data."

Philip Stark, a professor of statistics at the University of California at Berkeley, has been hired by the Justice Department to create a study showing that filtering software is flawed and COPA is necessary. "The government seeks this information only to perform a study, in the aggregate, of trends in the Internet. No individual user of Google, or of any other search engine, need fear that his or her personal identifying information will be disclosed," the government said in a brief last month.

Ware is no stranger to technology cases. He heard the Sex.com domain name case in 2001, a spam lawsuit in 1998 and a legal spat between RealNetworks and Microsoft in 2004.