A US District Court Judge yesterday hinted that he would order Google to comply with a demand for search records from the Justice Department after the Department said it needed the details of fewer web addresses and search queries than originally requested.
The Bush Administration wants these as evidence in a dispute over the constitutionality of a law that aims to protect children from viewing internet porn.
In August it served Google with a subpoena, seeking the text of each search string entered into Google's search engine over a one-week period, absent any information identifying the people who entered the search terms. It also sought a random sampling of one million URLs from Google's database of websites.
Google refused to comply, arguing that to do so would breach the privacy rights of its users, and in January the Justice Department filed a motion with a San Jose court, seeking to enforce the subpoena.
The case came to court yesterday and, while he has not yet given his ruling, Judge James Ware made it clear that he was in favour of ordering Google to produce some of the search records, particularly as the Justice Department had drastically reduced the number of records sought.
The Department is now seeking only 50,000 web addresses, of which it says it will look at 10,000. It has also reduced the number of search queries sought – down to 5,000 from one million. Of these, the Department says it will only look at 1,000.
But the Judge also made it clear that he would not grant all of the Department’s requests, expressing concern that the public could come to believe that typing search terms into Google was “subject to government scrutiny”.
According to the latimes.com, the Judge was also sceptical that the Justice Department would really keep the Google records confidential, asking whether, if a search query linked a web user with Osama bin Laden “the government would ignore it and not use it?"
Google appears to be comfortable with the position.
"We're very encouraged," Nicole Wong, associate general counsel at Google told the New York Times. "At a minimum we have come a long way from the government's initial subpoena. If it had started this way, it would have been a very different discussion."
Background
The dispute relates to a suit brought in 1999 by the American Civil Liberties Union (ACLU), on-line publishers and others over the controversial Child Online Protection Act.
Passed in 1998, the law known as COPA creates a crime of knowingly placing on-line for commercial purposes any material that is "available to" and deemed harmful to minors.
Violation carries a fine of up to $50,000 and six months in prison, although there is a defence if the website operator restricts access to minors by requiring use of a credit card or other means of age verification.
According to the ACLU, however, the law is unconstitutional because it bans material that is legal for viewing by adults.
In June 2004 the US Supreme Court upheld an injunction against the enforcement of the Act, but then sent the case back to a district court, for a decision on whether advances in technology – such as filtering software – have now provided less restrictive means for the online protection of children than the draconian measures detailed in the Act.
The Justice Department is therefore seeking evidence to show that COPA is more effective in protecting minors than the new technology. To this end it has subpoenaed records from the four major search engines – Google, Yahoo!, MSN and AOL. Analysis of these records should show how often internet users encounter internet porn, and whether this can be blocked by filters.
According to reports, Google is the only firm not to comply with the request, citing its concern for user privacy.
