The government is asking a California court to force Google to turn over information about usage of the company's search engine for finding pornography on the Internet.
The government says it needs those Google usage records to prepare its defense in a lawsuit brought against it by the American Civil Liberties Union (ACLU). But Google is resisting.
Thus, U.S. Attorney General Alberto Gonzales on Wednesday filed in the U.S. District Court for the Northern District of California a motion to compel Google to comply with the government's subpoena.
The ACLU lawsuit, filed in 1998, challenges the Child Online Protection Act (COPA) law, which aims to protect minors from the effects of exposure to sexually explicit material on the Internet.
Nicole Wong, Google's associate general counsel, said in a prepared statement e-mailed to IDG News Service: "Google is not a party to this lawsuit and their demand for information overreaches. We had lengthy discussions with them to try to resolve this, but were not able to and we intend to resist their motion vigorously."
The ACLU's challenge to the COPA, arguing that it violates the First Amendment to the U.S. Constitution, has been so far successful. The Pennsylvania district court in which the lawsuit was filed granted the ACLU's motion for preliminary injunction, and an appeals court affirmed it in 2000.
The case went to the 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.
Now the government is preparing its defense of COPA's constitutionality, and is specifically trying to buttress its contention that the law is more effective than filtering software in protecting minors from pornographic material on the Internet, according to the motion.
As a result, the government has issued subpoenas to Google and other search engines requesting information to make its case. But Google has refused to comply with the two requests. One request is that Google provide the government with a "random sample" of 1 million Web site addresses found in Google's search engine index and the other is that it provide the government with the text of all queries filed on the search engine during a specific week.
"The production of those materials would be of significant assistance to the Government's preparation of its defense of the constitutionality of this important statute," the motion filed reads. This information would help the government understand how often Web users encounter material considered "harmful to minors" as a result of using a search engine, and to determine how effective filtering software is, according to the motion.
The motion doesn't name the other search engine operators whose records were subpoenaed, but it indicates that they complied with the request.
Google is refusing to comply with the subpoena in part because of fears that doing so will breach the privacy of its users and make them identifiable to the government, according to the motion.
However, the government contends that while it is requesting the text of queries, it is not requiring Google or the other search engine operators to provide information that would identify the persons who made those queries, according to the motion.
Google's refusal is also motivated by concerns that some of its trade secrets might be revealed, concerns the government considers groundless for various reasons. The government argues that if information of that nature had to be produced, it could be protected by the court so it wouldn't become public.
Another objection from Google is that assembling the requested information will place an "undue burden" on the company, according to the complaint. The government argues the burden will be minimal and that it is willing to compensate Google for "reasonable expenses" incurred.
Representatives from two other consumer-oriented search engines had little to say.
A Yahoo spokeswoman acknowledged the company was subpoenaed, and said via e-mail that it didn't provide any personal information on users in response to it.
"We are rigorous defenders of our users' privacy," Mary Osako wrote. "In our opinion, this is not a privacy issue." She declined to disclose specific details of what information Yahoo did provide to the government.
A spokeswoman for Microsoft's MSN said via e-mail that Microsoft doesn't comment on specific government inquiries. "MSN works closely with law enforcement officials worldwide to assist them when requested," she wrote.
An attorney who specializes in Internet law said that, at first glance, there doesn't seem to be a privacy issue involved in the government's request.
"The only time privacy comes into play in my view is when there is personally identifiable information for activities attributable to a particular individual," said John W. Dozier Jr., managing partner at Dozier Internet Law PC in Glen Allen, Va.
"My understanding is that the government isn't attempting to attribute any particular online activity to a particular person. They’re trying to understand a broad segment activities," added Dozier, who isn't involved in this case.
If that is the case, this is a very common type of discovery procedure attorneys use to assemble information that is pertinent and would aide in a litigation, Dozier said. It would be a different matter if the government were requesting IP addresses, in which case concerns about individuals' privacy would be warranted, Dozier said.