Judge voices privacy concerns about release of Google data to Federal government

Bay City News Service

March 14, 2006

A federal judge in San Jose indicated this morning that he would likely allow the federal government to subpoena a random sample of 50,000 web page addresses viewed by Google users in connection with a lawsuit over the Constitutionality of a federal anti-pornography law.

However, U.S. District Court Judge James Ware said he was less inclined to allow the federal government to subpoena a random sample of 5,000 search queries that Google users typed into the search engine because of privacy concerns.

"It is my intent to grant some relief to the government,'' Ware said.

The government is seeking the data to compile a statistical study of the types of web pages Internet users are viewing as part of its defense in a Pennsylvania lawsuit over the constitutionality of the 1998 Child Online Protection Act. The act imposes criminal penalties for the commercial distribution of any material "harmful to minors'' over the Internet. The American Civil Liberties Union has challenged the constitutionality of the law saying it violates the First Amendment protections on free speech.

U.S. Department of Justice Attorney Joel McElvain told Ware this morning that the government just wants the web page address, known as Uniform Resource Locators or URLs, and search query samples for statistical purposes.

"The government does not seek any personal identifying information. We are preparing a report for civil litigation,'' McElvain said.

"It would not be shared with any federal law enforcement officers.''

Ware asked, as an example, if the name of one of his law clerks was linked to Osama bin Laden in one of the random search queries "you wouldn't share that with law enforcement?"

McElvain said that the information would not be shared. Ware seemed skeptical and concerned about the public perception.

"The perception, fair or unfair . . . is that the government is going to be out there plying the database whenever it wants to,'' Ware said.

Google's attorney argued that the data the government is seeking from it is irrelevant to their study and the relevant information can be easily obtained without a subpoena from metasearch engines such as Webtracker and Dogpile.com

"Our URLs are actually useless to the government study,'' Google attorney Albert Gidari said. "That information is readily available today . . . without entangling Google.''

ACLU attorney Aden Fine also spoke in opposition to the government subpoena. He agreed with Gidari that the data the government is seeking is irrelevant to any statistical study of the types of web pages Internet users are viewing.

"The data will not show whether the search queries were generated by human beings or artificial programs,'' and there is no way to tell if the search queries come from inside the United States or outside of it, where users would not be subject to the COPA, according to Fine.

The government has also asked for similar data from AOL, Yahoo and Microsoft. Those companies provided undisclosed data to the government, according to statements made today in court by the attorneys.

Outside the courthouse Gidari said Google considers it a "significant victory" that last month the government reduced its request from two months of search queries and viewed URLs to the current 5,000 and 50,000 numbers. He was confident that Ware would not order Google to turn over any search query data.

"We want our users to understand that when you enter a query we're not going to be handing it over without the proper legal procedures,'' Gidari said.

Ware promised to issue a final written decision soon.

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