By Scott Cameron

It was just a simple discovery tool, used by the Department of Justice in defense of a lawsuit brought by the American Civil Liberties Union. It hasn’t gotten much attention. In fact, for several months, it got no attention at all. But it’s starting to. So, what is “it?”

On August 25, 2005, Alberto Gonzales, U.S. Attorney General, issued a subpoena to Google, Inc., the online search engine used by millions every day to navigate the Internet. In this subpoena, the Attorney General demanded that Google, who was not a party in the case, produce “1. All URL’s that are available to be located through a query on your company’s search engine as of July 31, 2005,” and “2. All queries that have been entered on your company’s search engine between June 1, 2005, and July 31, 2005.” In essence, the Department of Justice was asking Google to produce the Internet, and a list of all searches on the Internet for two months.

The demand comes at a time when the issue of privacy and governmental intrusion is becoming a concern to more and more citizens. The U.S. Patriot Act, a controversial law granting the government significant investigative power, is up for renewal. This Act has many opponents in the government and in the private sector due to the intrusive nature of the powers it affords to federal law enforcement agencies. The government is also coming under considerable fire for the widely-reported wiretaps it used to fight terrorism.

This subpoena is not being used to fight terrorism. The purpose for this subpoena is to defend the constitutionality of the Child Online Protection Act-a law that requires commercial Web sites to shield minors from materials that may be harmful to them or face potential criminal penalties including prison. As stated in the declaration of government expert Dr. Philip Stark, Professor of Statistics at the University of California at Berkeley, “reviewing URL’s available through search engines will help [the government] understand what sites users can find using search engines, to estimate the prevalence of harmful-to-minors (HTM) materials among such sites, to characterize those sites, and to measure the effectiveness of content filters in screening HTM materials from those sites.” Further, “reviewing user queries to search engines will help [the government] understand the search behavior of current web users, to estimate how often web users encounter HTM materials through searches, and to measure the effectiveness of filters in screening those materials.” This information, the government says, would assist its “efforts to understand the behavior of current web users, to estimate how often web users encounter harmful-to-minors material in the course of their searches, and to measure the effectiveness of filtering software in screening that material.”

Not surprisingly, Google objected to the demand, claiming the demand was too broad, burdensome, and intrusive. The Department of Justice and Google worked toward a compromise regarding the subpoena. The Department agreed to limit its request to only one million random URL’s and a random sampling of one million search queries submitted to Google on any given day. However, Google still objected to the demand, and refused to comply with the subpoena. According to Google, complying with the demand would require it to divulge important trade secrets, and would require divulging information about the individuals that use its service, and even potentially revealing personal identifying information about its users.

This dispute went largely unnoticed by the public until January 18, 2006, when the Attorney General filed a motion to compel compliance with the subpoena in a federal court in San Jose. The motion to compel states that “after lengthy negotiations, the Government has narrowed this request to seek the production of an electronic file containing ‘the text of each search string entered onto Google’s search engine over a one week period (absent any information identifying the person who entered such query.)'”

Filing this public motion got some attention. The story was reported in the major newspapers and on online news sites when the motion was filed. Privacy groups, such as the World Privacy Forum and the Electronic Privacy Information Center are rallying behind Google’s stance resisting the subpoena. Many of these organizations are filing amicus briefs with the court. Not to be left out, Congress is also becoming involved. Sen. Patrick Leahy sent the Attorney General a request for information regarding the subpoena, including the potential for production of personal identifying information and any safeguards to prevent such production. Representative Ed Markey said he intends to introduce legislation to curb records retained by Web sites.

It will be interesting to watch this dispute play out. Google’s response to the motion is due on February 17, 2006, and the government’s reply is due on February 24th. Amicus briefs are also due February 24th, and the hearing on this motion has been moved to March 13th.

Lost in this dispute is the fact that the subpoena to Google was only one of the subpoenas issued by the Attorney General. America Online, Microsoft Network, and Yahoo apparently did not challenge the subpoenas. Have you used any of these search engines lately? Do you remember what search strings you used?