Google keeps up porn probe battle

• Tags:
• Secrets,
• Privacy,
• Justice Department,
• DoJ

Declan McCullagh CNET News

Published: 20 Feb 2006 09:05 GMT

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Google lashed out at the US Justice Department on Friday, saying that a high-profile request for a list of a week's worth of search terms must not be granted because it would disclose trade secrets and violate the privacy rights of its users.

In a strongly worded legal brief filed with a federal judge in San Jose, California, the search company accused prosecutors of a "cavalier attitude", saying they were "uninformed" about how search engines work and the importance of protecting Google's confidential information from disclosure.

This response came after the Justice Department last month asked a judge to force Google to hand over a random sample of one million Web pages from its index, along with copies of a week's worth of search terms to aid in the Bush administration's defence of an Internet pornography law. That information is supposed to be used to highlight flaws in Web filtering technology during a trial this autumn.

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

"The privacy of Google users matters, and Google has promised to disclose information to the government only as required by law," the brief says. "The privacy and anonymity of the service are major factors in the attraction of users — that is, users trust Google to do right by their personal information."

Google's opposition raised eyebrows last month after it stood up to the US government but capitulated to censorship demands from China's ruling Communist Party. At a hearing this week, politicians said they were "sickened" that Google, Microsoft, and Yahoo chose to censor their search results for Chinese users.

Another reason for objecting to the subpoena, Google says in its brief authored by Al Gidari and Lisa Delehunt at the law firm of Perkins Coie, is that government lawyers might share the information with the FBI for criminal prosecution — say, of people who typed in search terms like "marijuana cultivation" or "directv hacking".

A protective order does say that only Justice Department attorneys "who have a need" for the information may receive it. But a department spokesman told Newsweek last month that, "I'm assuming that if something raised alarms, we would hand it over to the proper [authorities]."

"This is all part of a civil action, and so consequently it's strictly to get the information we specifically requested," Charles Miller, a Justice Department spokesman, told ZDNet UK sister site CNET News.com on Friday. "As regards that material, that is what it is being used for and that is all."

A sex lawsuit's unexpected twist
The Bush administration's request is tied to its defence of the Child Online Protection Act, which restricts posting sexually explicit material deemed "harmful to minors" on commercial Web sites unless it's unavailable to minors.

In legal documents filed last month, prosecutors say compliance is necessary to prove that the 1998 pornography law is "more effective than filtering software in protecting minors from exposure to harmful materials on the Internet." For instance, Internet addresses obtained from the search engines could be tested against filtering programs to evaluate their effectiveness.

A divided US Supreme Court in 2004 stopped short of striking down the law and instead said that a full trial — to take place in Philadelphia — was needed to determine whether the law is constitutional.

Because the ACLU is likely to seek to dispute any conclusions the Justice Department draws from the data it receives from search engines, the civil liberties group apparently has been sending its own requests to other search companies. (The government has hired Philip Stark, a professor of statistics at the University of California at Berkeley, to evaluate the search logs.)

AOL has received such a request from the ACLU, Google disclosed in its brief, adding that its opposition to the subpoena was in part designed to avoid being enmeshed in precisely that kind of ongoing legal spat. That would place Google "in the witness chair, and exposes Google's intellectual property to cross-examination in open court by the ACLU, its counsel, experts, and consultants," the brief says.

AOL, Microsoft, and Yahoo each have received two subpoenas from the Justice Department, one asking for information about filtering technology and the other asking for search terms. The ACLU has given AOL a subpoena to appear at a deposition "asking for testimony about their parental control technology", ACLU attorney Aden Fine said Friday.

A survey conducted earlier this month by CNET News.com of the four major search engines about their privacy policies found that some would reveal when they had received subpoenas and what they did to delete customer data, while others would not. Google and Yahoo appeared to be the most secretive.

Yahoo, Microsoft, and AOL have said that they defend users' privacy vigorously and complied with the Justice Department's search request because it seeks only a list of search terms and Web addresses, and not individual user data. The government has not, for example, asked for information about who typed in what search terms.

US District Judge James Ware has scheduled a hearing on13 March to hear the case.

CNET News.com's Anne Broache and Greg Sandoval contributed to this report

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