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Government versus Google

March 31, 2010
by Erin Murphy

An analysis of what’s at stake in the controversial case.

In January, Google splashed across the headlines when it opposed a Department of Justice demand for one million website addresses and one week of search queries. The government says it needs the data to argue its case before a federal court in Pennsylvania to revive the 1998 Children’s Online Privacy Protection Act. In 2004, the Supreme Court affirmed a lower court’s order granting the ACLU’s request to temporarily halt enforcement of the act, which prohibits Internet companies from knowingly providing minors access to harmful materials. With that order still in place, the government has subpoenaed the materials in an effort to prepare its case for trial. Google argues that the request is overly broad and burdensome, and that the government is illegally asking it to divulge trade secrets and compromise its users’ privacy. California magazine asked Erin Murphy, a Boalt expert in constitutional law, for insight into the hotly debated case.

Does the wiretapping issue and the Justice Department’s request of Google and other search entities reflect a fundamental erosion of personal privacy or civil liberties?

More than anything, this kind of case highlights the degree to which people in the modern world routinely expose private information—often under a cloak of perceived anonymity—to third parties whose actions typically are not bound by the Fourth Amendment. I think many law-abiding, ordinary citizens would be embarrassed to see their most recent Google searches publicly exposed—whether it is the community intellectual typing in “Britney Spears,” the town optimist searching “lonely and depressed,” or the college student impulsively looking up the cute girl he has never had the nerve to speak to in class. Searches don’t have to be about illegal things to be private, and many people are understandably uncomfortable with the notion that someone can peek into their minds and draw conclusions about their even-lawful intentions.

In the Google situation, what are the likely outcomes in terms of how the issue might be adjudicated?

The specific question to the court is, on its face, not nearly as exciting as the general question of how to strike the right balance between privacy, anonymity, and civil liberties on the one hand and public welfare on the other. Instead, it’s a more routine question of the government’s power to subpoena relevant information in preparation for trial, measured in part by how burdensome or inconvenient the request may be for the third party. Google’s defense appears to be both that this request is not only quite burdensome, but also that it risks compromising proprietary information. In this respect, it is interesting that the government doesn’t want Google’s information to use directly; instead, it wants Google’s information so that it can effectively perform an experiment. The court will want to know why there aren’t other ways of performing that experiment that don’t require Google’s disclosures. In fact, given that Yahoo, Microsoft, and AOL seem already to have complied voluntarily, it is possible that, in this case, the Google records could be viewed as unreasonably cumulative. Alternatively, the Court could find that others’ voluntary compliance suggests that the request is not as burdensome or unreasonable as Google claims.

Why do you think the administration chose pornography rather than terrorism as a test for what kind of information the government can demand?

It may be that the administration deliberately chose this case as a test vehicle, but I don’t think that is necessarily so. In issuing a subpoena, the government typically has to show some relevance to a matter at hand—a case or an investigation that it is undertaking. The government would be hard-pressed to make such a broad request in an ordinary criminal investigation; instead, the subpoena would likely be limited to searches from a certain computer, or by a certain set of users. But in the context of this case, the government has at least a credible argument that the breadth of its inquiry is justified. I do think it is interesting that the government has acknowledged that, while its current request does not demand any identifying information, the prosecutor will refer for further investigation any suspicious searches it encounters in the review of the data. In this sense, the request could easily be used—if not deliberately contrived—as a back-door way of conducting a broad, suspicionless, and warrantless search for purely law enforcement purposes.

Should people be just as concerned about a private company—Google or any other—having unlimited access to the same, or even more information?

That is the most significant part of this case, and the most under-recognized: The fact is that four major search engines not only store this data, but also that three voluntarily complied with the government’s subpoena. It might be argued that market forces operate to check the power that these companies exercise with the information they control. But how many people really read and consider the “privacy statements” that pop up when you sign up for a new email account, use a search engine, or get a new provider? I think the vast majority of law-abiding citizens proceed in some degree of “ignorance-is-bliss,” and in some degree of “I’m not breaking any laws, so why should I worry?”

From the March April 2006 Can We Know Everything issue of California.

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