Alberto, Google & the Right to Privacy, Act II (The Government's Request)

This is Part II of a series looking at the events that led to the Bush administration's filing of a motion this week to force Google to comply with an earlier subpoena for information.

Let's start where we left off last night. The Bush administration had been thwarted in their attempts to use COPA to prevent children from viewing inappropriate material on the Internet. The Supreme Court had struck down the law on First Amendment grounds (you can't limit adults to speech considered suitable for children). Remember what the Supreme Court said to the Bush administration when it did so: either come up with a less drastic version of the law or prove that the statute does not violate the First Amendment and is the best way to combat Internet websites with material that could be harmful to children.

Rather than amend COPA, the Department of Justice focused on proving that the statute is the only viable way to combat this material. How to do that? Data!!

Danny Sullivan of Search Engine Watch (SEW) postulates "[t]o prove a need for the law, the US government wants to show how much porn children might encounter through searches." And, instead of taking the direct route of doing searches similar to those a child might do on the Internet, the government tried to obtain the data from the four largest search engines. SEW: "[i]t's important to note this case is not about stopping child porn. It's about trying to get a law passed that would help the government shut down sites that allow children themselves to access porn."

The Mercury News quoted the government: "The production of those materials would be of significant assistance to the government's preparation of its defense of the constitutionality of this important statute."

In the summer of 2005, the Department of Justice served Google, MSN, AOL and Yahoo with subpoenas demanding ALL the URLs stored in their search engines and a month's worth of the searches requested by users.

The government said: "Reviewing URLs available through search engines will help us understand what sites users can find using search engines, to estimate the prevalence of harmful-to-minors (HTM) materials among such sites, to characterize those sites, and to measure the effectiveness of content filters in screening HTM materials from those sites."

The government's motion continued: "Reviewing user queries to search engines will help us understand the search behavior of current web users, to estimate how often web users encounter HTM materials through searches, and to measure the effectiveness of filters in screening those materials."

Sullivan called HTM (harmful to minors) the new WMD (weapons of mass destruction). And remember how THAT government initiative turned out.

Sullivan also pointed out on ABC's Nightline that the government's request showed a lack of understanding of how the Internet operates and how search engines function. If the Department of Justice (DOJ) had a better understanding, they would realize that they needed to "filter out all the automated queries coming in from rank checking tools." In essence, the spiders crawling the system would have skewed the data. However, the DOJ's subpoena did not take this into account; it was a remarkably unsophisticated request. And, remember, all the DOJ had to do in the first place was to sit down and do searches that a child might be expected to do in order to find the material that a child might find.

While MSN, AOL and Yahoo aren't saying much, the assumption is that all four search engine companies pointed out their privacy concerns as well as the fact that the amount of information being requested was enormous. With respect to the request for all URLs, the government documents say that, "after 'lengthy negotiation' with Google, the government changed and 'narrowed' their request. Sullivan says the new request was for "a list of one million web addresses. Not who went to the web pages and when, just a list of URLs picked randomly."

With respect to the demand for a month's worth of searches made by users, Sullivan says, "Again, after lengthy negotiations the government . . . changed their request and asked for an electronic file 'containing the text of any search string entered into . . . [the] search engine for a one-week period (absent any personal information identifying the person who entered the query.)'"

At this point in the negotiations, MSN, AOL and Yahoo all complied with the request and produced the material demanded. Google, however, has continued to refuse to cooperate.

The government and the other three search engines have all stressed that the material turned over was stripped of any identifying information. They conveniently neglect to mention that the government's original request was much broader, but was negotiated downward to remove that data. As Americans review the government's actions in this matter, they should not forget that initial request. Had their request gone unchallenged, the government could today be in possession of an enormous amount of personal information on Internet users.

Tomorrow, we'll look at the reasons Google listed for not complying with the government's request.