Friday, January 20, 2006

previous entry | main | next entry | TrackBack (0)

Man, the DOJ has some strange lawyers

Mike Hughlett reports in the Chicago Tribune that the Justice Department would like to access Google's records:

Google Inc. is refusing to obey a Justice Department demand that it release information about what people seek when they use the popular search engine, setting up a possible battle with broad implications for Internet privacy rights.

The Justice Department asked a federal court this week to force Google to turn over a trove of information on how people use the Internet. A subpoena, first sought over the summer, seeks activity on Google's search engines for a single week, a request that Google says could lead to identifying millions of people and what they were looking at.

The government, which says its request will not result in identifying individual computer users, wants to use the information to resurrect an online pornography law shot down last year by the U.S. Supreme Court. It wants to search Google queries to see how often users inadvertently run across sexual material.

The Internet's rise has raised issues of whether users would be vulnerable to electronic eavesdropping of all kinds, but Google's stand represents the first big public face-off between the world's leading search engine and the government....

Yahoo, which has the second most popular Internet search engine, acknowledged Thursday it has complied with the government on a "limited basis."

Other Internet search engines also appear to have complied with the request, said Chris Winfield, president of 10e20 LLC, a New York-based search engine marketing firm. "It looks like Google against everyone," he said.

Oddly, Google has issued no official comment. [UPDATE: check out this San Jose Mercury News story, however.]

I'm not competent to comment on the legality of the request, but the thing that struck me is that the DOJ is being unbelievably lazy.

The DOJ wants to show that online searches lead to inadvertent stumbles into porn. It is true that the best way to show this would be to retrieve a sample of searches. However, almost as good would be for the DOJ to commission some social scientist to do the research for them. It would not be hard for a researcher to run an experiment to gather this kind of data, and the results would be just as useful to the Department of Justice.

There's something else that disturbs me about this request. If Yahoo! and other search engines have already complied, then the DOJ doesn't really need Google's data. All of the search algorithms are pretty much identical -- which means that Justice already has a sufficiently large sample. Even if the differences are more important than I think, the companies cooperating with the DOJ already represent a larger combined market share than Google, so it's not clear that their cooperation is really necessary for the DOJ to make its evidentiary argument.

So why continue to press Google?

I see one of two possibilities:

1) The data they have doesn't support the administration's supposition, and they're hoping Google will bail them out;

2) They don't care about the data for this case as much as they do about establishing a legal precedent and/or intimidating Google into compliance.

Readers are encouraged to try and diving what the DOJ is thinking.

UPDATE: One other quick thought -- although I doubt they acted for these reasons, this is brilliant PR for Google. Their spectacular growth and ever-increasing range of activities had threatened to turn cultural perceptions against the firm. By resisting the Bush administration -- in contrast to Yahoo's capitulation -- Google will look very, very good to all the syberlibertarians oiut there.

posted by Dan on 01.20.06 at 10:01 AM


I am confused about why/how DOJ is using the criminal subpoena power for legislative ends.

posted by: PD Shaw on 01.20.06 at 10:01 AM [permalink]

All the search algorithms are *NOT* the same. Try an experiment, Dan, and run the same search through the top search engines. You will see different results, for all but the most obvious of searches. After all, don't you have a search engine that you use more than the others? Are you just lazy, or does it work better for you?

posted by: mike on 01.20.06 at 10:01 AM [permalink]

So DOJ is subpoena-ing data to support a law that has not yet passed?

I don't get the feeling that this administration cares that much about porn. What they care about are the prerogatives of the federal government. In that case, to get any kind of records they like from any source about anyone or anything. If you want a right to privacy, move elsewhere!

If you accept the premise that this is all about intimidating Google into compliance with the wishes of government, and that porn legislation is just an excuse, I am thinking what DOJ is really after, is to get a judge to legislate from the bench that they do have an inherent right to the data.

Btw, won't be using Y! any longer.

posted by: Darwin on 01.20.06 at 10:01 AM [permalink]

Could the administration be using the quest to ressurect the COPA as a cover to get access to search data to use in a number of different ways, none of which it can legitimately justify?

You're the Bush administration, you've been playing Cloak & Dagger with people's civil rights using the Patriot Act as your cloak, its been revealed that you're eavesdropping on countless conversations and you're doing your best to fight terrorism; even at the cost of implied civil rights like privacy. Given your willingness to possibly violate people's rights in order to figure out what they're doing, is there anything you wouldn't do to get your hands on what people are searching for on the internet?

posted by: NeutralNate on 01.20.06 at 10:01 AM [permalink]

1. It is certain that at least some of these search engine companies routinely sell this data to market research companies. I don't see how letting the government near it is any worse for privacy. Why can't the government buy any data available for sale to industry?

2. Google's motivation here is not to protect privacy, but, b/c they know that the moment they release a large chunk of search results, the other search engines will copy it.

posted by: DK on 01.20.06 at 10:01 AM [permalink]

Alright, so it now looks like Google vs. The US Government. Google is standing up for privacy rights and the little guy. Yadda yadda yadda.

What about Google and other major American companies trying to establish dominance in the Chinese market by assisting China's efforts to curb free speech?

posted by: Joe on 01.20.06 at 10:01 AM [permalink]

This is the same Administration we are supposed to take on implicit trust to make decisions concerning Iran. NSA wiretaps, Medicare drug fiasco, Tora Bora/hunt for bin Laden, Katrina response, and now the subponea of Google results: I hope it is clear to Daniel's readers that these are not isolated actions but part of the same web of thought.

> I don't get the feeling that this
> administration cares that much about porn.

Port itself? Probably not; every survey of DC call girls I have seen says they get as much or more business under Republican Administrations as Democratic, whether straight or kinky. I am sure in the privacy of their own homes both Administration members and their supporters are consuming as much porn as the national average for their SES classification would indicate.

Throwing bones to the base? Yes, that they care about - feeding the fundamentalists. Using "porn" and fundamentalist outrage to increase the power of the "unitary executive"? That they care about very very much.

Who _owns_ Hollywood, btw?


posted by: Cranky Observer on 01.20.06 at 10:01 AM [permalink]

big brother is watching!

posted by: denali on 01.20.06 at 10:01 AM [permalink]

Come on, everyone knows Bush wishes he was living
in a communist country like the defunked Soviet
Union, or maybe even a fascist one like Spain in
the late 1930's.

The DOJ is just trying to be helpful in making
America a close facsimile of those countries.

It's so hard living in a damn country that won't
let the President have any powers he wants, whenever
he wants.

Where the hell do you think you live? United States
of America?

More like Soviet States of America.

posted by: James on 01.20.06 at 10:01 AM [permalink]

Though there's no "official comment", from the San Jose Mercury News -- Google's hometown paper, more or less -- comes this quote:

Nicole Wong, an associate general counsel for Google, said the company will fight the government's effort ``vigorously.''
``Google is not a party to this lawsuit, and the demand for the information is overreaching,'' Wong said.

The Merc also quotes Google's lawers in a letter to the Justice Department.

``Google's acceding to the request would suggest it is willing to reveal information about those who use its services. This is not a perception that Google can accept,'' Google attorney Ashok Ramani wrote in an Oct. 10 letter to the Justice Department.


Google called the request ``overbroad, unduly burdensome, vague and intended to harass.''
Its October letter to the Justice Department said the government appeared to want to create ``a sample world-wide web'' so it could test the effectiveness of pornography filters.
``Google objects to Defendant's view of Google's highly proprietary search database -- the primary reason for the company's success -- as a free resource that Defendant can access and use, some levels removed, to formulate its own defense.''
Google also objected that the request would reveal ``privileged, confidential or trade-secret information.''
It suggested the government seek its information from the Internet Archive, a non-profit archive of Web pages that Google said more appropriately reflects the breadth of the Web.

Sorry, no links. Google it yourself.

posted by: trotsky on 01.20.06 at 10:01 AM [permalink]

I can save the DOJ the time and attest to the fact that internet searches often inadvertently lead to porn. I practiced law in front of a female judge who has since died of an unidentified auto-immune disorder. One doctor suggested to her that a Canadian canoe trip had exposed her to a parasite associated with Beaver droppings and was called "Beaver Fever." The judge told the story of what happended when she conducted a search of the term on the internet. I am sure you can imaging the Google results from such a search.

posted by: Geoff on 01.20.06 at 10:01 AM [permalink]

Always looking for a time waster, and hoping for preliminary data for a grant proposal to the DOJ, I set myself to work. A search for escort ship -- lets pretend we are a fifth grade male during a report on WWII -- brought up lots of sailors associations (that could be trouble!) and info on ships. But should our hypothetical youngster be over eager and forgot the 'ship' in escort ship. Well, you can guess.

Ironically, after setting the Google preferences to 'strictest', the sites for adult companions did go away -- but the third hit was a blog with way to much info on Republican journalist/rent boy Jeff Gannon. Maybe that's why the Bush DOJ is after Google.

posted by: Mitchell Young on 01.20.06 at 10:01 AM [permalink]

Ironically, after setting the Google preferences to 'strictest', the sites for adult companions did go away

That's not ironic. That's directly relevant to the case.

COPA demanded that commercial websites offering what is termed material "Harmful To Minors" (HTM) have some sort of password screen or authentication scheme to make sure that minors couldn't access it. When it was struck down, the Court's opinion insisted that porn filters were as effective as such schemes at preventing minors from accessing such materials, and that therefore the Constitution preventing mandated authentication schemes, since voluntary filters (or filters mandated on public computers) are seen as less intrusive.

Incidentally, as a computer user, I would probably actually prefer that all adult sites have authentication rather than have all public computers have site filters. I don't think that they really work. However, the Court viewed filters as less intrusive.

Now, opponents of COPA insisted that filters were sufficient to the task, and the DOJ is unsure. The question is obviously not whether HTM material will show up in a search. It clearly does, as you note. The question is only very incidentally how often does such material show up in such searches, but primarily how effective do the existing filters block out the porn sites that tend to come up in such searches. (As some note, Google itself can filter out this information; if this is effective enough, then that's an argument against COPA, since Google can do the job.)

The DOJ would obviously like to not have to ask for this information, and to not have to go through it. It is asking for the statistical information because the opinion of the Court made a statistical argument about effectiveness, not just possibility. Everyone concedes that filters don't block everything. The moderate center of the Supreme Court likes to base opinions on conditions and technicalities, though, rather than absolutes. Rather than say that requiring such authentication schemes was obviously Constitutional or not, the Court argued that it was Constitutional if and only if the filters were not effective "enough."

Clearly, the question of effective "enough" in the eyes of the swing Justices cannot be answered with a simple "duh, you can get porn when searching for other stuff, and filters can't block it all out without blocking out way too much useful stuff." It, sadly, can only be answered with rigorous statistics. This is the strong danger of the case-by-case judging favored by the center on the Court.

posted by: John Thacker on 01.20.06 at 10:01 AM [permalink]

Of course, as anyone knows, the types of schemes required by COPA can easily be gotten around by minors who really do want to look at the prurient material. For me that's a feature, not a bug. It's easier to get around them than the filters, but they do probably work better than filters in preventing people who don't want to see the material from accidentally doing so.

Honestly, from that practical perspective, it seems better on both ways than mandatory filters on public machines.

I am a bit disappointed in the commentators who don't seem to realize that the Supreme Court has already rejected their arguments that they think are so obvious and that the DOJ should be making instead. (Of course, in reality they probably think that the whole thing should be dropped, just as the ALCU doesn't believe in mandatory filters despite arguing in court that mandatory filters were sufficiently good as to make the COPA authentication schemes unConstitutional.)

posted by: John Thacker on 01.20.06 at 10:01 AM [permalink]

Post a Comment:


Email Address:



Remember your info?