Alberto, Google & the Right to Privacy, Act I (Background)

Yesterday morning, one of my critique partners sent me an article from the San Jose Mercury News entitled "Feds After Google Data." The opening sentence said, "The Bush administration on Wednesday asked a federal judge to order Google to turn over a broad range of material from its closely guarded databases."

Since yesterday, I've spent a fair amount of time trying to understand the issues and what is involved in the subpoena that Attorney General Gonzales first handed Google last summer. I’m not going to be able to cover the entire subject in one blog so be prepared for a multi-part series.

This all began, as so many messes do, with Congress, good intentions and a bad law.

Once upon a time . . . Congess was trying to protect children from the harmful effects of exposure to inappropriate material. To this end, it passed the Communications Decency Act (CDA) in 1996. The law was challenged and Attorney General Janet Reno found herself squaring off with the ACLU. In 1997, the CDA was found unconstitutional by the Supreme Court in a 9-0 decision which held that the law was far too broad (And doesn't that unanimous vote tell you just what a fine piece of legislation the CDA must have been?)

Congress gamely regrouped and came back with the Child Online Protection Act (COPA) in October, 1998 to replace the first law. Unlike the CDA, the new law limited itself to the Internet and also to commercial enterprises. "COPA prohibits the transmission of any material over the Internet deemed 'harmful to minors,' if the communication was made for a commercial purpose." The law sought to impose a $50,000 fine and six months in prison for deliberately posting such material on the Internet. It was scheduled to go into effect April 21, 2000.

As I'm sure you expected, the ACLU challenged Attorney General John Ashcroft and COPA and sought injunctive relief. A "trial court found the law unconstitutional on First Amendment grounds. An appeals court agreed COPA was unconstitutional, but not on the First Amendment grounds. In 2002, the Supreme Court sent the case back to the appeals court, limiting their decision to a very narrow scope. The Supreme Court did not address the constitutionality of COPA. Instead the Court left the injunction against FTC enforcement of COPA in place and suggested (hint, hint) that the appeals court take a look at the First Amendment issue. (data courtesy of the American Library Association)

The second time around on COPA, the appeals court (obviously composed of faster learners than Congress was) listened to what the Supreme Court had said and struck the law down for First Amendment reasons.

Once more, COPA made its way back up to the Supreme Court and, this time in 2004, the Supreme Court agreed with the appeals court saying (according to yesterday's SJMN) the law "was too broad and could prevent adults from accessing legal porn sites . . . However, the Supreme Court invited the government to either come up with a less drastic version of the law (hint, hint) or go to trial to prove that the statute does not violate the First Amendment and is the only viable way to combat child porn." Once again, the injunction against enforcing the law was left in place.

Okay, so now we come to last summer and it’s Attorney General Alberto Gonzales’ turn up at bat. Ignoring the Supreme Court’s invitation to develop a less draconian version of the law, the Bush administration decided that COPA was “more effective than filtering software in protecting from harmful exposure to harmful material on the Internet.” (Search Engine Watch quoting the court documents)

In August, 2005, AG Gonzales’ crew delivered subpoenas to Google, MSN, AOL and Yahoo demanding that the search engine companies “produce an electronic file contain(ing), ‘[a]ll URL’s that are available to be located on your companys’ search engine as of July 31, 2005.’"

In addition, the search engine companies were “asked to ‘produce an electronic file containing [a]ll queries entered into the . . . engine between July 1 and July 31 inclusive.’” (data and quotes provided by Search Engine Watch)

Okay, let’s stop here for a moment and look at what the government was asking for in these subpoenas. First, they wanted all websites available on the search engine, presumably so they could identify pornographic or inappropriate ones.

Now to begin with, doesn’t that strike you as being a wee bit large a request? Reminds me of my grandmother saying that my eyes were bigger than my stomach when I asked for a second dessert. Sort of makes me wonder if the government had a clue as to what they were asking for.

Second, they wanted all queries into the search engine for a month’s period of time. With the full range of data available to the search engines, the government would have sufficient information to identify the users who were looking at information deemed harmful to children on the websites the government identified as fitting their criteria. And, I'm also wondering here who was going to be responsible for deciding which sites contained porn? Laura Bush sitting up late at night with her laptop?

This blog is getting overly long so I’m going to stop here for tonight. Tune in tomorrow for the continuing saga of Alberto and his hunt for the porn treasure.