Judge to Force Google to Surrender Web Data

RENEE MONTAGNE, host:

Here in California, a judge has indicated he will grant at least part of a request from federal prosecutors to gain access to Google search database. The government wants the information to help defend a controversial law meant to keep children away from online pornography sites. As NPR's Laura Sydell reports, the judge's pending decision is likely to raise privacy concerns.

LAURA SYDELL reporting:

The Department of Justice, or DOJ, wants 5,000 random search requests, and 50,000 random website addresses or URL's indexed by Google. But U.S. District Court Judge James Weir seems inclined to split the baby in half, says Kevin Bankston, an attorney with the Electronic Frontier Foundation.

Mr. KEVIN BANKSTON (Attorney, Electronic Frontier Foundation): It sounds like he will be requiring Google to disclose URL's from its database of the web, but will not be requiring Google to disclose its search term logs.

SYDELL: The Justice Department wants the records as part of its effort to defend the Child Online Protection Act, or COPA. It wants to show that current web filters don't keep children away from pornography sites. In his comments, Judge Weir seemed satisfied that the DOJ's request for random web addresses did not violate the privacy of Google's customers. Weir did raise concerns about prosecutor's requests for individual search terms and results. The DOJ argued that their request for search results did not violate privacy rights, because they didn't want the names of the people who made the requests. Bankston is pleased that Judge Weir didn't seem to buy that argument.

Mr. BANKSTON: If someone published your email, but redacted your name from it, that would still be violation, and should be a violation. If the court did order the disclosure of the search logs, that would mean he'd have found that federal laws that are supposed to protect the privacy of your internet communications did not apply to search terms.

SYDELL: U.S. District Court Judge Weir has not yet issued a written opinion. He only made it clear in his comments during a hearing in San Jose which way he was likely to rule. But Google attorneys sense victory, and indeed, they've already had one. The government originally requested millions of search requests and web addresses from the company. But after being asked by the Court to justify such a large number, they backed down.

Nicole Wong is associate general counsel for Google.

Ms. NICOLE WONG (Associate General Counsel, Google): We are very encouraged by the judge's thoughtful questions and comments. They reflected our concerns about user privacy and the scope of the government's subpoena request.

SYDELL: However, not all privacy advocates found Judge Weir's comments in court reassuring. Paul Schiff Berman, a professor of law at the University of Connecticut, believes even if all the government gets is a list of web addresses from Google, it could, perhaps, lead to more detailed requests for online records in the future.

Professor PAUL SCHIFF BERMAN (Professor of Law, University of Connecticut): It's unclear how much it will open the door, but it's quite clear that he is not slamming the door shut, which, by its very nature is likely to be an invitation to future efforts and future litigation with regard to the scope of the subpoena power to get this sort of information.

SYDELL: For example, Schiff Berman says litigants in a divorce case might try to subpoena online records. But what troubles him even more is that Google and other online search engines actually have so much information about individual online behavior. He raises the same concerns that privacy advocates do, which is that as long as Google has these records, others will be tempted to try to get them. Judge Weir's written opinion in this case is expected before the end of the month.

Laura Sydell, NPR News, San Francisco. Transcript provided by NPR, Copyright NPR.