Justice Department lawyers on Tuesday dramatically scaled back their demand for information about Google Inc. search queries -- a major concession in a closely watched case with ramifications for online privacy.
But in a blow to privacy advocates, the federal judge overseeing the case said he would probably order the Internet search giant to hand over at least some of the data sought by the government.
The Justice Department wants Google to provide a sample of the Internet search terms its users type as part of a broader effort to regulate online pornography. The government also wants a sample of the websites Google archives in its database.
Other top Internet companies -- including Yahoo Inc., Microsoft Corp. and America Online Inc. -- complied at least in part with subpoenas seeking similar information. Google executives, though, balked, and the case became a test of the government’s reach in the Internet Age.
Recognizing that, U.S. District Judge James Ware said during a hearing that he was considering limiting any order to balance the business and privacy implications of the Bush administration’s request against the government’s need to gather evidence.
Google, Ware said, has the right to run its business without “perceptions by the public that somehow [its service] is subject to government scrutiny.”
After months of negotiations, the Bush administration revealed Tuesday that it had reduced its demands, to 5,000 randomly selected search terms entered by Google users and 50,000 website addresses in Google’s searchable index. The government had previously requested a week’s worth of queries, which could have numbered in the billions, and 1 million indexed Web addresses.
“Reducing the number of search queries that are revealed reduces the harm to privacy because much less information is being revealed,” said Kurt Opsahl, staff attorney with the Electronic Frontier Foundation, a group that advocates online privacy.
Nonetheless, Opsahl and others said, the case highlights how irresistible government agencies and civil lawyers are finding the treasure trove of digital information that Internet firms collect.
During the 1990s, the Internet promised to shield citizens’ communications from the prying eyes of government investigators and corporate interests, said University of Connecticut law professor Paul Schiff Berman. “But what we’re now seeing is that governments, by using the data collection and enforcement mechanisms of third parties, are actually able to gain access to information to a degree that is greater than in the offline world,” he said.
Federal investigators have already obtained potentially billions of Internet search requests made by users of other major websites, raising concerns about how the massive data collection will be used.
Yahoo, Microsoft and AOL have said that the information did not violate their users’ privacy, because the data did not include names or computer addresses. Even so, the disclosure alarmed civil liberties advocates, who fear that the government could seek more detailed information later.
Google argued that compiling and turning over the data would expose trade secrets about its search engine and violate the privacy of its users.
In the first hearing on the matter Tuesday, Ware, too, expressed skepticism that government lawyers, who requested the data for an unrelated civil lawsuit over the administration’s effort to protect children from online pornography, wouldn’t share any eyebrow-raising queries with federal investigators.
If a search query appeared to link someone with Osama bin Laden, the judge asked a government lawyer, “Are you telling me the government would ignore it and not use it?”
The government’s attorney, Joel McElvain, replied that the data would be used only for the purpose of testing how well Internet filters prevent children from accessing websites that are harmful to minors. The Justice Department needs that information as part of its effort to restore the Child Online Protection Act, a 1998 law that has been blocked by a federal court in Pennsylvania.
“It’s never realistic to expect that a civil litigant wouldn’t get some information out of this process,” said Google lawyer Al Gidari.
“The question is, what sideboards would be put around it to protect the company and protect Google users?”
Federal laws generally require government officials to get a search warrant or court order to procure electronic information without a user’s permission, not the simple subpoena Justice Department lawyers presented to Google. Privacy advocates contend that forcing Google to release any information to the government could have a much wider chilling effect.
“What you search for indicates a lot about you: what you’re worried about, what you’re interested in,” Opsahl said. “It’s a window into your personality that people consider to be very private information. The notion that the government is going to be looking over your shoulder may discourage people from seeking information they otherwise would search for.”
The Justice Department asked Google to remove all information identifying the person who made the search query. But, as Ware noted, that doesn’t mean privacy advocates have nothing to fear. People sometimes enter names, Social Security and credit card numbers, addresses and other personal information into Google to see what information is available online.
“What this case highlights for us is that the government is essentially outsourcing its surveillance to private companies,” said Frank Pasquale, a law professor at Seton Hall University in New Jersey. “What’s really at stake is, do people have any expectation of privacy in their search records?”