[lit-ideas] Re: Information Control

Andreas: It's not just the Chinese government. The US government is demanding that Google turn over information on users. AOL, Yahoo, and Microsoft have already complied.

Eric: My understanding is that the government is NOT getting any information on users, but is receiving billions of unidentified search requests. Correct me if I'm wrong on this please.

This was apparently true in the case of the early days of the FISA request for information; that is, various agencies were sending in junk.

Andreas: The Bush White House is illegally engaged in massive domestic surveillance of US citizens. They are reading emails, watching what webpages people look at, and so on.

Under FISA it isn't illegal; what's illegal is doing completely warrantless searches, searches without even an after-the-fact ratification from a judge. Of course, Bush contents that even this isn't illegal.

[For Marlena: the Government is trying to overturn a Supreme Court injunction against a Pennsylvania law's going into effect; that's why it wants the information from Google. In the China case, Google refused to protect identifiable people; in this case, it isn't protecting any identifiable person or group of persons. Not even the Government is arguing that. What the Government is arguing is that 'filters' are not entirely effective in protecting children.]

The New York Times

January 26, 2006

In Case About Google's Secrets, Yours Are Safe
By ADAM LIPTAK

The Justice Department went to court last week to try to force Google,
by far the world's largest Internet search engine, to turn over an
entire week's worth of searches. The move, which Google is fighting, has
alarmed its users, enraged privacy advocates, changed some people's
Internet search habits and set off a debate about how much privacy one
can expect on the Web.

But the case itself, according to people involved in it and scholars who
are following it, has almost nothing to do with privacy. It will turn,
instead, on serious but relatively routine questions about trade secrets
and civil procedure.

The privacy debate prompted by the case may thus be an instance of the
right answer to the wrong question. As recently demonstrated by
disclosures of surveillance by the National Security Agency and secret
inquiries under the USA Patriot Act, the government is aggressively
collecting information to combat terror. And even in ordinary criminal
prosecutions and in civil lawsuits, Internet companies including Google
routinely turn over authentically private information in response to
focused warrants and subpoenas from prosecutors and litigants.

But "this particular subpoena does not raise serious privacy issues,"
said Timothy Wu, a law professor at Columbia. "These records are
completely disconnected. They're just strings of words."

In its only extended discussion of its reasons for fighting the
subpoena, a Google lawyer told the Justice Department in October that
complying would be bad for business. "Google objects," the lawyer, Ashok
Ramani, wrote, "because to comply with the request could endanger its
crown-jewel trade secrets."

Mr. Ramani's five-page letter mentioned privacy only once, at the bottom
of the fourth page, and then primarily in the context of perception
rather than reality.

"Google's acceding to the request would suggest that it is willing to
reveal information about those who use its services," he wrote. "This is
not a perception that Google can accept."

Even Google's allies are shying away from legal arguments based on
privacy. The American Civil Liberties Union, for instance, said it
planned to file papers supporting Google. But not on privacy grounds.
"We will probably not be making that argument," said Aden J. Fine, a
lawyer with the civil liberties union.

The issues raised by the new subpoena, while substantial, are fairly
technical, according to Professor Wu. "The legal point here is what is
the relevancy standard for subpoenas?" he said. "That is interesting to
procedure scholars but to no one else."

[snipped in the interests of 'fair use]

A Justice Department spokesman, Brian Roehrkasse, agreed. "We
specifically stated in our requests," he said, "that we did not want the
names, or any other information, regarding the users of Google."

None of this is to say that subpoenas for search records linked to
individuals are inconceivable. Google maintains information that could
be used that way, and a subpoena could ask for it. But the recent
subpoena does not.

The problem with the subpoena, Mr. Fine said, is more general. "This is
another instance of government overreaching," he said.

The government says it needs Google's information to defend a challenge
from the civil liberties union to a 1998 law, the Child Online
Protection Act, which makes it a crime to make "material that is harmful
to minors" commercially available on the Web. The law was enjoined by a
federal court in Philadelphia before it became effective, and it has
never been enforced.

In 2004, the United States Supreme Court affirmed the injunction, ruling
that filtering devices may work as well or better than criminal
prosecutions in achieving the law's aims of keeping some offensive
materials away from children, and it sent the case back for a trial to
explore that question.

At a trial scheduled to start in October, the government will try to
prove that filters are ineffective. Philip B. Stark, an expert retained
by the government and a statistics professor at the University of
California, Berkeley, said in a court filing that the Web addresses and
search terms sought from Google and other Internet companies would help
him "to measure the effectiveness of content filters."

The government apparently wants to show that real-world searches will
pull up offensive materials that filters will not catch. Why it needs
Google to do that is unclear, and Professor Stark declined a request for
an interview, citing the pending litigation.

[snipped in the interests of 'fair use']

Google objected, Mr. Ramani said, because the fit between what the
government seeks and what it seeks to prove is poor. He also said that
collecting and providing the information was burdensome and that the
government could find it elsewhere.

Mr. Ramani did say that "one could envision scenarios" where Internet
searches alone could reveal private information, but he provided no
examples. But Google's main argument was that its "highly proprietary"
trade secrets could be jeopardized.

Marc Rotenberg, the executive director of the Electronic Privacy
Information Center, a civil liberties group that has frequently been
critical of Google, said the trade-secrets argument was a serious one.

In other contexts, Google and other Internet companies say they are
serious about protecting privacy. But their privacy policies acknowledge
that they will comply with valid requests from the government and
private litigants. Google's policy, for instance, says it may share
users' personal information if it has "a good faith belief" that
disclosure "is reasonably necessary to satisfy any applicable law,
regulation, legal process or enforceable government request." Nicole
Wong, Google's associate general counsel, said in an interview that the
company "complies with valid legal process."

According to a 2004 decision of a federal court in Virginia, America
Online alone responds to about 1,000 criminal warrants each month. AOL,
Google and other Internet companies also receive subpoenas in divorce,
libel, fraud and other types of civil cases. With limited exceptions,
they are required by law to comply.

Ms. Wong said Google tried to notify users so they could object in court
before the company turned over information about them. But the law
forbids such notification in some criminal cases.

Even notification can be small comfort. It means a user must quickly and
often at considerable expense find a lawyer and try to persuade a court
to quash the subpoena. But the law often offers very limited protection
for personal information held by third parties.

That approach no longer makes sense, said Daniel J. Solove, a law
professor at George Washington University. "In the information age," he
said, "so much of our information is in the hands of third parties."

Mr. Rotenberg said Internet search records, if collected and linked to
individuals, could give rise to a particularly profound invasion of
privacy. "It's kind of the shadow of the thoughts within your head —
your interests, your desires, your hobbies, your fears," he said.

[snipped in the interests of 'fair use]
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