Sunday, March 19, 2006

What Have You Given Up for Lent?

by Dave

Updated below by Luke

I have given up internet searches containing the words, "bomb", "anti-war", "Howard Dean", or "1984." However, my sacrifice was not a result of a spiritual epiphany. It was the result of a legal epiphany, that my searches could eventually become monitored.

Recently the Department of Justice (DOJ) has been embroiled in a bitter fight with Google Inc. over search records. Although the DOJ recently succeeded in compelling Google to produce 50,000 Web addresses indexed in its system, such success was tempered by the enormous costs and the fact that all of the information Google must hand over was already publicly available. This ruling, assured the public that at least in this situation their privacy would not be violated. However, because the judge chose not to reject the motion on privacy grounds, the government is not precluded from attempting to force Google to hand over specific users keyword searches at a later date.

On Friday, Judge James Ware of the U.S. District for the Northern District of California issued an order granting in part and denying in part a motion filed by the DOJ seeking to compel Google Inc. to comply with a subpoena. Judge Ware denied the DOJ's request that Google be ordered to hand over a sample of keywords customers use to search the Internet. Judge Ware did grant the DOJ's request that Google produce 50,000 Web addresses indexed in its system. However, the information which the DOJ was granted was already publicly available. The DOJ claimed that it needed the data for a statistical study which it hoped would demonstrate the effectiveness of filtering software at issue in a separate case (ACLU v. Gonzales) that concerns a federal law which targets access to pornography online.

The DOJ has claimed from the outset that "it would use the information from search engines only to test how well Internet filters prevent children from accessing potentially harmful websites." Judge Ware agreed that that the 50,000 Web addresses, or URLs, were relevant requests and granted the government's motion to compel Google to produce the Web addresses. However, this information would not disclose who was searching for what; it would disclose what would come up when certain words were entered into Google's search engine.

Although Judge Ware granted the government's request for the 50,000 Web pages, he did not give the DOJ what it really wanted, a sample of keywords customers use to search the Internet. It is this information that has had privacy advocates up in arms recently. The government claims in its brief that they are not seeking the names of the customers who entered the search, only the search itself.

Privacy advocates have countered that people sometimes conduct "vanity searches" whereby they enter their name or social security number to see what Google responds with. Judge Ware was particularly troubled by the possibility that "[p]eople sometimes enter names, Social Security and credit card numbers, addresses and other personal information into Google to see what information is available online." However, Judge Ware did not ultimately rule on the privacy issue because the DOJ's request had already been denied due to its duplicative nature.

The closest Judge Ware comes to ruling on the privacy issue is his statement

The expectation of privacy by some Google users may not be reasonable, but may nonetheless have an appreciable impact on the way in which Google is perceived, and consequently the frequency with which users use Google. Such an expectation does not rise to the level of absolute privilege, but does indicate that there is a potential burden as too Google's loss of goodwill if Google is forced to disclose search queries to the Government.

This dicta endorses the notion that while internet searchers cannot expect absolute privacy, they are entitled to partial privacy. However, because the issue was decided on alternate grounds the dicta of the court carries not precedential authority and the extent of this partial privacy is not addressed. Thus, debate over privacy will likely continue unabated.

After the decision, Google immediately declared victory, and the DOJ was left with some tough questions to answer. Chief among these questions is why the DOJ fought so hard to obtain this information? The only answer I have is that they wished to bring the question of the extent of internet privacy before a court.

It has been acknowledged by the government that Google was not the only target of the subpoenas. Other top Internet companies — including Yahoo Inc., Microsoft Corp. and America Online Inc. — also received the subpoena. However, unlike Google these companies all complied at least in part with the subpoena and avoided any legal confrontation. Such compliance provided Federal investigators with potentially billions of Internet search requests made by users of other major websites. This plethora of data makes the addition of the 50,000 results obtained from Google seem like only a drop in the ocean.

Furthermore, the 50,000 Web addresses received were already publicly available through Google and this information could be organized and recorded through the use of open source code. It is unlikely that any new information that will be of any consequence to the DOJ's case in ACLU v. Gonzales will be unearthed. In addition it was unlikely that any personal privacy would be violated by a release of the 50,000 Web addresses. Thus, I am led to the conclusion that the 50,000 Web addresses were not what the DOJ wanted. I believe that they wanted a judicial ruling on privacy.

Judge Ware did his best to oblige by making a coherent legal argument in opposition to the request; however, he only provided dicta which will act as a warning not a bar. Because there is no automatic bar to subpoenaing a search engine's records again the DOJ will almost assuredly be back in court litigating this issue again.

So what words will you give up?



Update by Luke:

One other thing to consider: it should not be forgotten that this entire discussion could very well be academic. That is, we still do not know whether the President has already authorized a secret N.S.A. data-mining program in addition to these DOJ requests lawfully made through judicial channels. Indeed, we already know that the DOJ has continued to pursue lawful FISA warrants while the NSA has simultaneously, illegally bypassed that mechanism.

Careful C-SPAN watchers and transcript readers likely remember that Attorney General Gonzalez repeatedly limited his remarks in his unsworn Judiciary Committee testimony on warrantless wiretapping to "the program," "the program in which I'm testifying," "the program which I'm testifying about today," "the program that I'm talking about today," "the program that the president has confirmed," and "the program in which I'm testifying." The following paragraphs rather speak for themselves:

BIDEN: . . . That's the assertion. It's only emanating from a foreign country, correct?

GONZALES: Yes, sir: authorization of the program I'm talking about.
. . .
SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

. . .

SCHUMER: It's also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I'm here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I'm here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program.

. . .
KOHL: . . . And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?

GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.
. . .
SESSIONS: Thank you, Attorney General Gonzales.

I believe you've faithfully fulfilled your responsibility to give your best, honest answers to the questions so far. I think they've been very effective.

If people have listened, I think they will feel much better about the program that that the president has authorized and that you are explaining. Because some of the news articles, in particular, gave the impression that there's widespread of wiretapping of American citizens in domestic situations and in every instance there's an international call.

Most of us by plain language would understand "international" to be different from domestic. And the president has limited this to international calls in which one or more parties are connected to Al Qaida.

Is that correct?

GONZALES: Sir, the program that I'm talking about today, yes, is limited to international calls.

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