Google Feature Raises Legal, Privacy Issues - A Government Information Grab
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These issues are particularly alarming in light of recent activity from the U.S. government. The Bush administration is trying to revive the Child Online Protection Act (COPA), a 1998 pornography law that was struck down by the U.S. Supreme Court two years ago. The law sought to ban Internet sites from displaying content that the government deems "harmful to minors." The Supreme Court blocked it on the grounds that it was too intrusive, and stated that it should not be enforced unless less intrusive measures such as Internet filtering are shown to be inadequate.
That's where the U.S. Justice Department comes in. In late January, it subpoenaed Google in an attempt to prove that pornography is so pervasive it requires a federal law to shield minors. The department is seeking a sample of a million websites from the billions that Google currently indexes, plus all of the search terms typed into the services during a one-week period. Yahoo!, MSN, and AOL have already complied with the subpoena; they say they have done so without compromising their users' privacy. As of this writing, Google has refused to comply, on the grounds that it violates its users' privacy and its own trade secrets. "Google is not a party to this lawsuit and their demand for information overreaches," maintains Nicole Wong, Google's associate general counsel. "We intend to resist their motion vigorously."
While Google correctly realizes that this is a fishing expedition, it might not have strong legal ground to stand on. To understand that, we need to go back in history, to 1986, when the Electronic Communication Privacy Act was enacted. This law was created in the days before the Internet became widely used, and before people stored large amounts of information (such as emails) on places other than their own computers. Basically, files stored with online service providers can be obtained by lawyers merely by filing a subpoena. If those same files are stored on your computer, it takes a court order to get them in the hands of a lawyer, which is a little more difficult to obtain than a subpoena.
The Electronic Communication Privacy Act was not forward-looking as far as technology is concerned. It was mainly created with the idea of preventing email and similar providers from sharing their customers' personal data with third parties, so it didn't consider how search engines and other companies might collect data on their users. So even what little privacy protection the law provides might not extend to data collected by Google or the other search engines. Which means that a government lawyer -- or even a civil one, such as a divorce lawyer -- simply has to send Google a subpoena.
The Justice Department claims that it is not seeking information that is personally identified with anyone; it just wants aggregate information. But the truth is, it wouldn't take much technical work for that information to be attached to individuals; Google can do it now. Take another look at one of the conditions under which Google shares information with third parties, cited above. If the government wanted to send a subpoena to Google asking for a list of the names or Internet addresses that searched for "how to cheat the IRS" or "how to build a terrorist bomb," Google could probably provide them with that list -- and indeed, given that it would presumably be part of some sort of legal investigation, the search engine would be on shaky ground trying to turn them down.
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