EFF vs. the DoJ and Google: Day 2

When we left this legal tussle yesterday, Google had responded to my question about the Electronic Frontier Foundation's lawsuit demanding that the Department of Justice turn over correspondence between its former chief privacy officer and Google's current chief privacy officer, who are one and the same attorney, Jane Horvath.

Some background before we get to that reply. (Update: And that reply is followed by yet another this afternoon, which has Google suggesting, in so many words, that there is nothing for the DoJ to turn over to EFF in this case. You can read it in full below.)

Essentially, through a Freedom of Information Act request, the EFF wants to know the substance of any interaction the then-DoJ's Horvath had with Google during - and subsequent to - a highly charged 2006 dispute over the DoJ's arm-twisting to get Google to turn over a mountain of search records. That request was later ratcheted down to smaller pile of search records and Google caved, unwisely. (Note: Google disputes that "caved, unwisely" characterization, noting that they acted under court order, and also that no "search queries" were turned over, rather 5,000 URLs.) The fact that Horvath not long thereafter became Google's Horvath is what set eyebrows arching.

Six months after being asked for the public records, the DoJ has given the EFF nothing other than an initial acknowledgement of having received the request. Nor has the department answered media inquiries.

Here's what Google told me in a statement yesterday: "Google did not work with Jane Horvath on this issue when she was at DoJ."

One way to interpret that statement is that the DoJ hasn't complied with the EFF's request because there's nothing to turn over.

Not so fast, said EFF attorney David Sobel, in response to my question yesterday seeking interpretation of the Google reply. He said the Google reply was a lawyerly answer to the wrong question.

"We never referenced the (2006 DoJ vs. Google) subpoena issue in our FOIA request or lawsuit, and that's not what we're asking for," said Sobel. "We merely mentioned it in our PR because Horvath made some interesting comments about it (and the vast amount of info Google collects) in an interview during her first few months at DOJ."

Here's what the EFF lawsuit says was requested of the DoJ on Aug. 16, 2007: "All correspondence, electronic mail or other communications between Jane C. Horvath, the Department's Chief Privacy and Civil Liberties Officer, and employees, representatives and/or agents of Google, Inc. ... created from February 2006 to the present."

I'm no lawyer, but that would appear to make Google's reply to me yesterday non-responsive, although that could conceivably be a byproduct of yesterday's press coverage that focused so intently on the 2006 DoJ/Google dispute.

I'll try Google again today.

(Update: That try produced the following statement from Google:)

"We have no issue with EFF's request to the government for this information or filing a lawsuit as a followup to that request. We also would have been and are still happy to talk to EFF about this, but EFF has not asked us any questions or explained what they have concerns about.

Regarding the DoJ lawsuit in the EFF press release, the reference is incorrect - the judge's ruling was explicit in completely rejecting DoJ's demand for search queries. Also, we sought the views of EFF on this particular case before and during the case, so EFF should be very familiar with the facts of the case and the judge's ruling, which is of course publicly available.

Regarding Jane Horvath, she did no work with Google or on cases involving Google while at DoJ. Once she contacted Google about a job, she formally recused herself from any Google matters, although there were none."

Now, Horvath deserves credit for her deft career switch - what's not to like about leaving evil to join "do no evil" - but it would appear that the DoJ isn't done accounting for her involvement with her current employer during the time her job was to protect the privacy rights of the public.

The EFF's not going away.

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