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Feds take porn fight to Google
By Declan McCullagh and Elinor Mills
Staff Writer, CNET News.com
Published: January 19, 2006
Last modified: January 19, 2006

Federal prosecutors preparing to defend a controversial Internet pornography law in court have asked Google, Microsoft, Yahoo and America Online to hand over millions of search records--a request that Google is adamantly denying.

In court documents filed Wednesday, the Bush administration asked a federal judge in San Jose, Calif., to force Google to comply with a subpoena for the information, which would reveal the search terms of a broad swath of the search engine's visitors.

Prosecutors are requesting a "random sampling" of 1 million Internet addresses accessible through Google's popular search engine, and a random sampling of 1 million search queries submitted to Google over a one-week period.

Google said in a statement sent to CNET News.com on Thursday that it will resist the request "vigorously."

The Bush administration's request, first reported by The San Jose Mercury News, is part of its attempts to defend the 1998 Child Online Protection Act, which is being challenged in court in Philadelphia by the American Civil Liberties Union. The ACLU says Web sites cannot realistically comply with COPA and that the law violates the right to freedom of speech mandated by the First Amendment.

The search engine companies are not parties to the suit.

An attorney for the ACLU said Microsoft, Yahoo and AOL received identical subpoenas and chose to comply with them rather than fight the request in court.

Yahoo acknowledged on Thursday that it complied with the Justice Department's request but said no personally identifiable information was handed over. "We are vigorous defenders of our users' privacy," said Yahoo spokeswoman Mary Osako. "We did not provide any personal information in response to the Justice Department's subpoena. In our opinion this is not a privacy issue."

Osako declined to provide details, but court documents in the Google case show that the government has been demanding "the text of each search string entered" by users over a time period of between one week and two months, plus a listing of Web sites taken from the search engine's index.

"Our understanding is that MSN and AOL have complied with the government's request, that Yahoo has provided some information in response, but that information wasn't completely satisfactory (according to) the government," ACLU staff attorney Aden Fine said.

Jack Samad, senior vice president for the National Coalition for Protection of Children and Families, a Cincinnati, Ohio-based advocacy group, said search engines should be willing to help the Bush administration defend the law.

"Young people are experiencing broken lives after being exposed to adult images and behaviors on the Internet," Samad said. "I'm disappointed Google did not want to exercise its good corporate branding to secure the protection of youth. I think (complying with the subpoena) would substantiate the basis of COPA if they get a free exchange of information on youthful use of the Internet."

AOL spokesman Andrew Weinstein confirmed that the company received a subpoena from the DOJ but said the information from the ACLU was not accurate.

"We did not and would not comply with such a subpoena. We gave (the DOJ) a generic list of aggregate and anonymous search terms, and not results, from a roughly one day period. There were absolutely no privacy implications," Weinstein said. "There was no way to tie those search terms to individuals or to search results." He declined to elaborate.

A Microsoft representative said: "MSN works closely with law enforcement officials worldwide to assist them when requested....It is our policy to respond to legal requests in a very responsive and timely manner, in full compliance with applicable law." The company would not confirm or deny whether it complied with the Justice Department's subpoena.

But in a statement released later in the day Thursday, Microsoft said it was, in fact, contacted by the DOJ.

"We did comply with their request for data in regards to helping protect children, in a way that ensured we also protected the privacy of our customers," the company said. "We were able to share aggregated query data (not search results) that did not include any personally identifiable information, at their request."

In a motion filed Wednesday (click here for PDF), prosecutors say that compliance is necessary to prove that the 1998 law is "more effective than filtering software in protecting minors from exposure to harmful materials on the Internet." Records from search logs would help to understand the behavior of Web users and estimate how frequently they encounter pornography, the motion says. For instance, Internet addresses obtained from the search engines could be tested against filtering programs to evaluate their effectiveness.

A subpoena dated August 2005 (click here for PDF) requests a complete list of all Internet addresses that can "be located" through Google's popular search engine, and "all queries that have been entered" over a two-month period beginning on June 1, 2005. Later, prosecutors offered to narrow the request to random samples of indexed sites and search strings. It's unclear what version of the request AOL, Microsoft and Yahoo complied with.

Although the government is not asking for Internet addresses that would identify people, some legal experts fear that disclosing search terms would invade privacy.

"The more (the government) can figure out who the surfers are, the more people's First Amendment rights are in jeopardy," said Peter Swire, a law professor at Ohio State University.

The Justice Department declined to comment on Thursday. But in court papers, it says that even though other search companies voluntarily complied, excerpts from Google's logs are "of value to the government" because it has the "largest share of the Web search market."

To analyze the logs, the Justice Department has hired Philip Stark, a professor of statistics at the University of California, Berkeley. Stark said in a statement that analyzing information from Google would let him "estimate the prevalence of harmful-to-minors" and the "effectiveness of content filters" in blocking it.

 Google, for its part, "is not a party to this lawsuit and (the government's) demand for information overreaches," associate general counsel Nicole Wong said in a statement. "We had lengthy discussions with them to try to resolve this, but were not able to, and we intend to resist their motion vigorously."

In a letter dated Oct. 10, 2005, Google lawyer Ashok Ramani objected to the Justice Department's request on the grounds that it could disclose trade secrets and was "overbroad, unduly burdensome, vague and intended to harass."

The Bush administration's request is tied to its defense of the Child Online Protection Act, which restricts the posting of sexually explicit material deemed "harmful to minors" on commercial Web sites, unless it's unavailable to minors.

A divided U.S. Supreme Court in 2004 stopped short of striking down the law and instead said that a full trial--to take place in Philadelphia--was needed to determine whether the law is constitutional.

A trial before U.S. District Judge Lowell Reed is scheduled to begin Oct. 2. ACLU attorney Fine said although the dispute with the search companies does not directly involve his organization, until prosecutors "explain what they plan to do with this and provide a detailed explanation, they cannot meet their burden to justify forcing Google to turn over this information."

Privacy concerns
As part of their defense of COPA, prosecutors are expected to argue that technological filtering methods are less effective than criminal prohibitions.

Privacy watchdogs have worried about the massive store of data that Google has assembled about the online behavior of Internet users. Google keeps log files that record search terms used, Web sites visited and the Internet Protocol address and browser type of the computer for every single search conducted through its Web site. It also sets cookies that can be used to correlate repeat visits to the company's growing network of Web sites.

Sherwin Siy, staff counsel at the privacy rights advocacy organization Electronic Privacy Information Center, praised Google for fighting the administration's request. However, he said there would not even be an issue if the search engine hadn't collected the information and made it aggregatable in the first place.

"This continual aggregation of people's search streams and all this information and the other data from their other services like Gmail places privacy at risk. This is something you would think Google should have anticipated," he said. "It is not a recent phenomenon that overbroad government investigations will put people's privacy at risk by digging through business records."
In other news:

EPIC's Siy said AOL and MSN should have fought the government's demands more vigorously. "In not doing anything to protect the privacy of their customers they are not doing the right thing," he said. "They are taking the easy way out."

A spokesman for Ask Jeeves said Thursday that it "has not received requests for search data from the Department of Justice in this matter."

Kurt Opsahl, a staff attorney for the Electronic Frontier Foundation, said he was glad Google "stood up in this case to protect the privacy of this information and I'm disappointed that other search engines would be willing to turn it over without a fight."

"Google has a massive database that reaches into the most intimate details of your life," he said. "What you are searching for, what you are reading, what you are worried about, what you enjoy. People should be able to use modern tools like search engines without the fear of Big Brother looking over their shoulder."

CNET News.com reporters Anne Broache and Greg Sandoval contributed to this report.

Once again, the law in question was blocked from taking effect by the Supreme Court in 1998. We know the Bush White House disregards Court Orders, but will lower courts follow suit? Conservative activist judges make new laws faster than Congress.