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Google must capitulate to DoJ, says judge
But it's not likely to be an unconditional surrender...

By Declan McCullagh

Published: Wednesday 15 March 2006

A federal judge hearing arguments in the Department of Justice's records fight with Google said on Tuesday that he would grant federal prosecutors at least part of their request for excerpts from the search giant's massive database.

US District Judge James Ware said he intends to release his decision "very quickly", and that he might give the Justice Department access to a portion of Google's index of websites but not to its users' search terms.

Ware said he was reluctant to give the Justice Department everything it wanted because of the "perception by the public that this is subject to government scrutiny" when they type search terms into Google.com.

On 18 January, the Justice Department asked Ware to order Google to comply with a subpoena. It demands a "random sampling" of one million internet addresses accessible through Google's search engine, and a random sampling of one million search queries submitted to Google in a one-week period.

During negotiations, the Justice Department narrowed its request to 50,000 URLs and said it would look at only 10,000. It also said it wanted 5,000 search queries and would look at 1,000.

Ware said the reduced demand, coupled with the government's "willingness to compensate Google" for up to eight days of its programmers' time, had convinced him to grant the Justice Department at least some of what it had requested.

During the hearing, which lasted about 90 minutes, Google's lawyer, Al Gidari, stressed there is an alternative for the Justice Department's social science research, which is designed to show the flaws of filtering software and defend an anti-pornography law in court.

Gidari said: "They can go to Alexa. They have four billion URLs."

Gidari said Alexa Internet, which is owned by Amazon.com, is a site that offers web analytics services that can produce similar information "without entangling us in litigation going forward".

That point was raised repeatedly by Ware, who seemed concerned that if he granted the request, "a slew of trial attorneys and curious social scientists could follow suit".

The outcome will determine whether the Justice Department will be able to use Google search terms in a social science research project that will be used this autumn to defend an anti-pornography law. The Bush administration argues that criminal sanctions in the 1998 law - which has been placed on hold by the courts - are more effective ways to shield children than anti-porn-filtering software.

Though the Justice Department also demanded that AOL, Microsoft and Yahoo!, hand over similar records, Google was the only recipient that chose to fight the subpoena in court. The other companies have stressed they turned over search terms and logs but not information that could be linked to individuals.

The dispute has elevated the prominence of search privacy, touching on how divorce lawyers or employers in a severance dispute could gain access to search terms that people have typed in. It's also raised eyebrows because Google chose to co-operate with a demand by the Chinese government to censor searches on the company's Google.cn site.

If the Justice Department does win this case, Google is likely to face a second round of subpoenas from the American Civil Liberties Union (Aclu) for follow-up information. The Aclu is challenging the 1998 Child Online Protection Act, which makes it a crime for a commercial website to post material that some jurors might find "harmful" to any minor who stumbles across it.

Aclu attorney Aden Fine told Ware that his organisation would "certainly need to know" additional information about how Google's search engine works, in order to rebut the Justice Department study. That information, he said, would include topics such as the number of servers and the number of web pages indexed.

If Ware follows through with his suggestion that excerpts from Google's search index may be permissible to hand over - but search terms will not be - that would essentially eliminate privacy worries.

Google has cited privacy concerns in court documents and said on Tuesday that the Electronic Communications Privacy Act sets strict rules for obtaining access to search terms that the government has not followed.

Deciding to grant part of the Justice Department's request - effectively splitting the difference - would permit Ware to avoid some of these thorny privacy concerns. It would also avoid the possibility of setting a precedent that could create new hurdles for prosecutors in future criminal investigations.

Ware also questioned whether Justice Department attorneys would actually keep search terms confidential, especially incendiary ones that could prove useful in future criminal or antiterrorism investigations.

Search data obtained from Google by the Justice Department is "not shared with anyone else", replied Joel McElvain, an attorney for the Justice Department. He said that would include "federal law enforcement officers."

McElvain also argued that because AOL, Microsoft and Yahoo! had willingly complied, it shouldn't be too difficult for Google to do the same. "The other search engines have been able to do this fairly quickly and easily," he said.

Declan McCullagh writes for CNET News.com