Justice Department's assault on Google to backfire?

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

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
4 min read
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

settle, or the judge could rule on unrelated grounds.

But if the federal courts adopt Google's interpretation of the law, the FBI and other police agencies would find it more difficult to obtain records of search terms in criminal investigations. Similar searches, such as those performed on databases like Lexis-Nexis or Westlaw, or on news sites such as those of The New York Times and Yahoo, would also receive higher privacy protection.

Lawyers in civil cases, such as divorce attorneys and employers in severance disputes, would also encounter a new legal roadblock when seeking search terms.

"That is a good thing for privacy and I think the correct application of the law," says Kevin Bankston, an attorney at the Electronic Frontier Foundation, a digital-rights group in San Francisco.

A spokesman for the Justice Department declined to comment Tuesday on whether the subpoena could backfire on prosecutors, saying the matter was under litigation.

Ohm, the former Justice Department prosecutor, said any federal appeals court that makes a sweeping proclamation about ECPA in a civil case is the government's "nightmare scenario" because such an interpretation of the law could make criminal investigations more difficult.

If that happens in the Google subpoena litigation, Ohm said, "Who knows? You may see calls for new legislation."

This case is unusual because it was brought by the Justice Department's civil division, which is hoping to use the search terms for social-science research instead of as part of a criminal investigation. The department's ECPA specialists in the Computer Crime and Intellectual Property Section would not normally have been involved, Ohm said.

ECPA says that anyone offering an "electronic communication service to the public" generally may not divulge the contents of a communication except with the consent of the user or to a law enforcement agency that has a search warrant or a court order--instead of just a subpoena.

One twist in ECPA, however, could doom the Justice Department's pursuit of the search terms of Google's users. A search warrant is usually authorized only for criminal investigations, and ECPA's court order requirement also specifies an "ongoing criminal investigation."

But the Justice Department's defense of the Child Online Protection Act in a lawsuit brought by the American Civil Liberties Union is a civil dispute, not a criminal investigation.