Vague U.S. Statute Underlies Google Case

Relieved at averting another confrontation with the government that no one needs, all of cyberspace seemed to exhale last week when a federal judge cut way back on the data he would require Google to turn over to the Justice Department in a big privacy case.

But I’m not relieved, and you shouldn’t be either.

Directly at issue in the ruling by U.S. District Judge James Ware of San Jose was a government subpoena that initially sought from Google a list of all Web pages in its search database as of last July 31 -- that’s billions of Web URLs -- as well as every search query that had been entered by anyone for the two-month period ending that day. Similar subpoenas had been served on America Online, Yahoo, and Microsoft’s MSN service, all of which rolled over for the G-men. Google, however, resisted. After the government narrowed its request considerably -- to a random sample of only 50,000 Web addresses picked from Google’s index -- Judge Ware waved it through.

On a company weblog, Google, which contended it was trying to protect its users’ privacy as well as its own trade secrets, called the narrowed order “a clear victory for our users and for our company.”

But very few news articles about Ware’s order reminded readers what really underlies the government’s subpoena. It’s an extremely troubling and slapdash statute known as the Child Online Protection Act, which Congress passed in 1998 in an attempt to be the nation’s all-seeing Mrs. Grundy, and which Bill Clinton signed into law.

COPA, as it’s known, would criminally punish anyone running a website for “commercial purposes” who posts on the Web any “material that is harmful to minors” and that minors might see.

Civil libertarians have huge problems with this law, as they should. COPA isn’t aimed at material that might be considered obscene or at child pornography, but at a broader and more nebulous variety of content. Indeed, it’s almost impossible to parse the term “harmful to minors.” Even if we accept the law’s three-pronged test that the forbidden material must be designed to appeal to “prurient interest” with respect to minors; represent sexual contact, acts, or genitals in a “patently offensive manner” with respect to minors; and lack redeeming value for minors, there’s no way for a website to figure out whether its material falls into the forbidden zone. A minor can be anyone from the age of 1 to 16; manifestly, a wide gulf yawns between material that might “harm” a 6-year-old and what might “harm” a 16-year-old.

The law is also vague about “commercial” activities. Could the Los Angeles County Museum of Art qualify by hawking a $10.99 Gauguin print of a bare-breasted Tahiti maiden on its website? Some federal prosecutor, somewhere, might think so.

The American Civil Liberties Union, acting on behalf of the online journal Salon.com, a sexuality education site run by the Sexual Health Network and other websites aimed at adult markets, sued to overturn

COPA. “Our bottom line is that the government should not be in the business of deciding what people can and can’t see on the Internet,” Aden Fine, an ACLU staff attorney, told me.

The ACLU obtained a federal court injunction barring enforcement of the law, and the matter proceeded to ricochet up and down the federal court hierarchy, stopping twice at the Supreme Court, as judges tried to figure out if all or part of COPA might be unconstitutional.

It’s an understatement to say that the law has twisted the Supreme Court in knots. The first time they looked it over, the justices issued five overlapping, separate and partially concurring opinions plus one dissent. That was in 2002, on a narrow question of constitutional law. They found the case dumped back in their laps in 2004, this time on the issue of whether

COPA was the least restrictive or narrowly tailored way to remedy the exposure of minors to harmful material. (That’s a key test for laws that arguably restrict freedom of speech.)

Justice Anthony M. Kennedy, writing for a court majority, ruled that the ACLU might be right in arguing that commercial filtering software is both more effective and less restrictive than a law penalizing U.S.-based profit-seeking enterprises whose material might be discovered by children. The organization observed that filtering programs installed on home computers or offered by Internet service providers could block objectionable material coming from overseas, rather than just from within the U.S. -- an important consideration, given that at least 40% of all Web content originates abroad.

Moreover, because a filter is presumably under the control of an adult in the house or at the public library, it can’t interfere with an adult’s activities online. Filters also block a far wider range of material than COPA, including e-mails, chat rooms and news groups, and can be configured to keep minors from sending information to strangers as well as receiving it.

But Kennedy found “a serious gap” in our knowledge of filters’ effectiveness, and ordered the lower court to fill it. The Department of Justice commissioned Berkeley statistician Philip B. Stark to compare filters’ effectiveness with COPA’s, hoping that he would find that the filters were relative sieves of “harmful” material. For this task, it claimed, Stark required a database of websites culled from Google, Yahoo, AOL and MSN. Thus we ended up with a courthouse to-do over search privacy.

I don’t know how Stark will be able to compare filtering software to COPA, since COPA’s effectiveness depends on prosecutorial discretion and the judgments of judges and juries anywhere in the country. All we know about COPA is that it will allow strangers to impose on me and you their judgment of whether something is harmful to the minors in my house or yours. Software filters, on the other hand, allow us to impose our own judgments on the activities of our own kids, and don’t bar us from seeing legitimate content that COPA might criminalize.

That’s the true scandal lurking within the Google case: The government can’t resist trying to shove its nose into our private affairs.

Golden State appears every Monday and Thursday. You can reach Michael Hiltzik at golden.state@latimes.com and view his weblog at latimes.com/goldenstateblog.