Here’s some news that’s near and dear to my heart. After its last attempt at an anti-porn law was ruled unconstitutional, the US government has demanded information about what users of search engines search for, in order to assist the government make a new law that doesn’t get overturned. Yahoo, MSN, and AOL have complied with the government’s subpeona and handed over countless search queries entered by their users (most of which had nothing to do with porn). On Friday, Google rejected the Department of Justice’s subpoena for the search queries of Google users.
Google users trust that when they enter a search query into a Google search box, not only will they receive back the most relevant results, but that Google will keep private whatever information users communicate absent a compelling reason. The Government’s demand for disclosure of untold millions of search queries submitted by Google users and for production of a million Web page addresses or “URLs” randomly selected from Google’s proprietary index would undermine that trust, unnecessarily burden Google, and do nothing to further the Government’s case in the underlying action.
Fortunately, the Court has multiple, independent bases to reject the Government’s Motion. First, the Government’s presentation falls woefully short of demonstrating that the requested information will lead to admissible evidence. This burden is unquestionably the Government’s. Rather than meet it, the Government concedes that Google’s search queries and URLs are not evidence to be used at trial at all. Instead, the Government says, the data will be “useful” to its purported expert in developing some theory to support the Government’s notion that a law banning materials that are harmful to minors on the Internet will be more effective than a technology filter in eliminating it.
Google is, of course, concerned about the availability of materials harmful to minors on the Internet, but that shared concern does not render the Government’s request acceptable or relevant. In truth, the data demanded tells the Government absolutely nothing about either filters or the effectiveness of laws. Nor will the data tell the Government whether a given search would return any particular URL. Nor will the URL returned, by its name alone, tell the Government whether that URL was a site that contained material harmful to minors.
But the burden is not mechanical alone; it includes legal risks as well. A real question exists as to whether the Government must follow the mandatory procedures of the Electronic Communications Privacy Act in seeking Google users’ search queries. The privacy of Google users matters, and Google has promised to disclose information to the Government only as required by law. Google should not bear the burden of guessing what the law requires in regard to disclosure of search queries to the Government, or the risk of guessing wrong.
It’s nice to see at least one company stand up to the spooks and actually consider our rights. This is a very Good Thing. On the other hand, also very disturbing that the government is even trying to get the information. Five years ago, I would have been really surprised to see something like this. On the other hand we didn’t have “Homeland Security” people patrolling around in suburbia back then, either. It doesn’t look like the long slow deterioration of the bill of rights will stop any time soon. First it was the “War on Drugs”, then we got the DCMA. Next came the Patriot Acts and the “War on Terror”. Now the government is spying on our email (via Carnivore), and wants our search queries.