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MS, AOL and Yahoo! caved to Feds' fishing expedition

Inside the DoJ vs Google show trial

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The US Justice Department confirmed yesterday that Microsoft, Yahoo! and AOL have already complied with its request to hand over the details of queries submitted to the search engine - a fact that was disclosed in court documents this week. The DoJ wants the information, not for a criminal prosecution, but as background materia to bolster its attempt to revive a Clinton-era anti-pornography law.

Google is the only one of the four major search engines to balk at the request, a stance which has won the company a lot of goodwill this week. The EFF heaped praise on Google for resisting the subpoena [*].

But on closer examination, Google's reasons for fighting the subpoena are less altruistic and more to do with its familiar refrain, of protecting "commercially sensitive information". And as a justification, that's almost as redundant as the DoJ's fishing expedition itself, when we remember that AOL uses Google search technology. The Feds already have what they want.

No discussion of this case is fair without two important pieces of context. Under the PATRIOT Act, law enforcement can demand information from ISPs and search engines without notification. We can assume such requests, which reveal personally identifiable information, are not uncommon.

Secondly the Bush Administration has insisted on its right to use wiretaps and other surveillance methods without judicial approval. Illegal wiretaps, we recall, are what ended the Presidency of Richard M Nixon - but the Justice Department maintains that Congress in 2001 implicitly granted the executive power to eavesdrop without judicial approval. Last week, the ACLU sued the administration arguing that this violated the Fourth Amendment, which protects citizens from unreasonable searches and seizures.

So Gonzalez vs Google isn't exactly a skirmish that's defining the frontiers of internet privacy - that's taking place in the air war, far overhead.

Now let's see what Microsoft, Yahoo! and AOL gave the government, and what it wants from Google.

Gimme the rude words

The Child Online Protection Act, or COPA, was struck down as unconstitutional two years ago after a court case brought by the ACLU. The Justice Department seeks to revive the law, and its case is based on proving that it is more effective than filtering software in protecting children.

To bolster this case, it's asking Google by subpoena for two sets of data. One is every search query submitted to Google in a one week period (the DoJ had asked for every query made in June and July last year), "absent any information identifying the query", and a random sample of a million URLs in Google's database. The Feds had asked for Google's entire database.

A subpoena was served to Google on August 25, and negotiations continued until a formal objection by Google on October 10. Google cites objections of relevance, privilege and burden and has refused to comply. The DoJ counters that shorn of identifying information, the queries it wants don't invade Google users' privacy. Google says that since all the other search engines have produced the information requested, it doesn't have to. The DoJ counters that to develop "a sample of the overall universe of queries", it needs Google's information too, and that in any case, Google is the largest.

Google claims the information on how many searches are made each day is a trade secret.

Google takes offence at the DoJ's view of its "highly proprietary search database" … "as a free resource that the [DoJ] can access and use, some levels removed."

The DoJ points out this information wouldn't be disclosed to the public or Google's competitors, and notes Google has failed to show harm.

"Google cannot expected to know - or figure out - 'all information' in the possession, custody, or control of its attorneys, agents, employees, boards, consultants, contractors and other representatives," the company claims.

And you thought they were in the search business?

Google's defence isn't the sturdiest we've ever read, but it didn't cave at the first opportunity, and it's making the government work for its data. As it should.

But in the context of warrant-free wiretaps, and secret PATRIOT disclosures, this is a mere show trial. ®

[*] Just in: EFF congratulates Police for not beating up homeless guy.

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