Commentary: Google's battle has broad implications
SAN FRANCISCO (MarketWatch) -- I'm not sure what's more troubling -- the fact that the U.S. government wanted to get its hands on the Internet search results of millions of its citizens, or that some of the leading search firms were so quick to provide the data.
Privacy -- or the lack of it -- on the Internet came screaming to the front burner this week on the news that Google Inc. was the only one of four major U.S. search engines to refuse a Justice Department subpoena to provide information on its users' search results.
Not that Google has always been the white knight. Like Yahoo Inc. and Microsoft Corp., Google has previously responded to government requests -- in China -- to censor or turn over its data.
Rather than tracking down and jailing dissidents, as the Chinese government did with information provided by Yahoo, the subpoena by U.S. Attorney General Alberto Gonzales is part of an effort to revive a 1998 law designed to protect children from seeing or being exploited by online pornography.
The U.S. Supreme Court struck down the law as too broad in 2004, saying, among other things, that the government should give Web-filtering software a chance to work. See archived story.
Trolling through two month's worth of random results at the world's leading search engine, as the government's original subpoena requested, presumably would give Justice Department investigators a good read on what percentage of those searches were for child porn.
But some privacy advocates, coming to Google's defense, called the effort a fishing expedition that completely disregards the privacy of the millions of browsers who conduct innocent searches.
"This could have a chilling effect on how people use the Internet," said Evan Hendricks, who's edited and published Privacy Times newsletter in Washington, D.C., since 1981.
Even more troubling to Hendricks was that Google's search rivals, including Yahoo Inc. declined to comment on whether it received a subpoena, but a lawyer for the American Civil Liberties Union, which sued to overturn the 1998 law, told MarketWatch the software giant did.
"There's no way to be sure that those search results can't be used later to track people down for all sorts of reasons," he said.
One privacy lawyer not involved in the case agreed.
Under the Electronic Communication Privacy Act, government prosecutors have fairly wide latitude to subpoena emails and other electronic communications if they have probable cause to believe a crime has been committed, said Andrew Serwin, a partner with the law firm Foley & Lardner LLP.
If an individual user had made thousands of searches for child porn, for example, "there's nothing stopping federal prosecutors from issuing another subpoena to learn the Internet address of the person who made those requests," said Serwin.
I would argue that anyone exploiting children over the Internet deserves to be tracked down and prosecuted.
But what if the government decided to use the same method to track down people who used questionable tax shelters?
How much right should the government have to use private-sector records to troll for possible criminal activity?
"As a society, we have to decide how far the government can go to establish probable cause" that a crime has been committed, Serwin said.
Google has already paid a price for its refusal, at least in the stock market. Shares of the Mountain View, Calif.-based firm, whose stock has risen five-fold since it went public in August 2004, suffered their biggest percentage drop ever Friday. See full story.
On a day when the broader technology sector suffered its biggest point drop in more than two years, it's unclear whether the drop was due to general investor bearishness or fears that Internet users may be more reluctant to use search engines if they know the results could be reviewed by law enforcement agencies.
Google's shares dropped more than those of Yahoo, Microsoft and Time-Warner, which complied with the subpoena. Part of the Google bearishness stems from the cost that Google might incur from a protracted legal fight.
If Google decides to go to court, its success in resisting the government would turn on whether the government's request is allowed under a part of the Electronic Communication Privacy Act that deals with stored communications.
That law, according to Serwin, is "cumbersome, difficult to understand and has been interpreted in many ways" by various courts. "As written, it's a bad law," he said.
So much gray area makes it likely that the two sides may choose to compromise, rather than slug it out before a judge.
Google obviously has other things to do, like figure out how to get their search results on iPods. And should the government pursue the case and lose, its anti-porn efforts would be hamstrung.
Still, another privacy watcher said it's important that Google stand on principle.
"It's important that they fight this, or else every prosecutor is going to start using Google as its research service," said Jim Harper, director of information policy studies at the Cato Institute, a Washington, D.C., think tank.
Given the experience of Internet companies in China, it's important to draw the line now, according to Harper.
Last month, Microsoft Corp.'s MSN unit pulled the plug on a Chinese blogger who discussed politically-sensitive issues. Yahoo has also shared such data, which led to the conviction and jailing of a journalist, and Google itself has agreed to make its search results in that country amenable to surveillance.
"This request (for Google's data) is disturbing because it's the nose under the camel's tent," Harper said. If we're not careful, control and censorship of Internet data in this country "could look more like China than we thought possible," he said.
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