DOJ Lowers Number of Subpoenaed Google Search Records

The federal government today told a judge that it is asking for significantly fewer search record records from Google than originally requested.

The DOJ claims that it needs the records to bolster its argument that a federal law is more effective than filtering software when it comes to restricting access by children under the age of 18 to pornographic content on the Internet. Google opposed the request.

Nicole Wong, associate general counsel at Google, said in an e-mail statement, "We're very encouraged by the judge's thoughtful questions and comments. They reflected our concerns about user privacy and the scope of the government's subpoena request."

Wong confirmed that the government is now asking for 50,000 URLs (uniform resource locators) and 5,000 search queries, both much lower numbers than those in the original subpoena.

Judge's Inclinations

Today's hearing, in the courtroom of Judge James Ware of the U.S. District Court for the Northern District of California, was held to decide whether the search engine operator needs to comply with the government subpoena requiring it to turn over search usage records. Google contended that the original request was overreaching and compromised the privacy of users.

According to press reports, Judge Ware said he is leaning toward granting at least part of the government's request, probably by ordering Google to provide data on random Web sites found on its search engine index. However, the judge also said he wants to be sensitive to users' privacy concerns that evidence of their personal search behavior may end up in the government's hands, according to press reports. Judge Ware reportedly indicated he would make a decision very soon.

DOJ spokesman Charles Miller said, "If my reports are correct, that the judge ruled that Google had to turn over the information that we had requested, we're pleased," he said.

What Led to Today's Hearing

The government in January filed a motion with the court to compel Google to comply with its subpoena and turn over a "random sample" of 1 million Web site addresses found in its search engine index. It also asked to provide the government with the text of all queries filed on the search engine during a specific week. America Online, Yahoo, and Microsoft's MSN were also subpoenaed and complied to varying degrees.

At issue is the DOJ's defense of the Child Online Protection Act (COPA) law, whose constitutionality has so far been successfully challenged by the American Civil Liberties Union (ACLU) in an ongoing legal tussle.

COPA, which the ACLU argues violates the U.S. Constitution's First Amendment right to freedom of speech, will again be debated in court in October, Miller said.

The Pennsylvania district court in which the COPA lawsuit was filed granted the ACLU's motion for preliminary injunction, and an appeals court affirmed it in 2000.

The case went to the U.S. Supreme Court, which vacated the judgment of the appeals court and sent it back to that court, which in turn again affirmed the preliminary injunction. The Supreme Court again reviewed the case, but that time it affirmed the preliminary injunction and sent the case back for trial.

In defending COPA's constitutionality, the government wants to establish that the law is more effective than filtering software in protecting minors from pornographic material on the Internet.

"COPA was passed to prevent certain types of materials to be accessed by minors. So in order to show that this was needed, we were trying to get a sample from four search engines--Google, Yahoo, MSN and AOL--of [query] terms and URLs," Miller said. The DOJ isn't seeking data that would identify individuals, he said.

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