Google Playing for High Stakes in Fight With Feds

Ever since last week's news that the Department of Justice (DOJ) initiated legal action to compel Google (Nasdaq: GOOG) to provide it with search-term data, denizens of the blogosphere, news media, everyday users of search engines, and even some members of Congress have been debating the long-term implications for privacy in what may become a landmark struggle.

Few, though, have speculated on what the request's implications are for Google. To be sure, the markets weighed in immediately, sending Google's stock tumbling on Friday by some 8.5 percent, the biggest percentage drop since the company went public. On Monday shares were up again, by 3 percent.

The odds of Google having the feds' subpoena thrown out do not appear good, based on precedent and broad law-enforcement powers of the government, which prompts the question: What does Google get out of this fight if it's likely to lose it anyway? At face value, the answer may seem obvious -- a more loyal customer base and another chance to reinforce its "do no evil" brand.

Entire Search Space Tarnished?

There is the possibility that the entire search-engine space could be tarnished by the government's request, especially if it were to succeed. In such a scenario, Google's initial refusal to cooperate would quickly be erased in the public's mind, replaced by the knowledge that the government could conceivably ask any search provider for any information at will -- possibly even for data at the individual level.

"These kinds of actions by the government are clearly not good for business," said David Schatsky, senior vice president of research at JupiterResearch. "Consumers who are concerned that they may be spied on are likely to reduce the scope and frequency of online activities that may be subject to spying."

In that case, wouldn't it have been better for Google to quietly acquiesce -- as the other search engines did -- and hope that consumers wouldn't notice?

Few watching this scenario unfold are willing to speak on the record as to Google's motives. Google itself responded for this story with the same comment it has previously released on the matter -- basically stating that it intends to fight the government's demand that it give up its search data.

Step Two

Still, reading between the lines, it would appear that Google's decision to take the matter to court is based on a combination of factors. Obviously, there is self interest -- what company doesn't welcome even short-term positive coverage as the protector of individual privacy? Perhaps more compelling, though, is fear of the what the government's next request might be.

It does not appear that DOJ asked the search engines to pair search terms with individual users. "The kind of raw search data it asked for does not impinge on privacy, in my opinion," said Dean Harold J. Krent, a constitutional scholar at Chicago-Kent College of Law who served on the IIT team that examined the FBI's e-mail surveillance system for privacy implications.

"It may be, from Google's perspective, they are afraid of step two" -- that is, a request for individual data, he told TechNewsWorld.

Google itself implied as much in correspondence it exchanged with the DOJ last October. "Google's acceding to the request would suggest that it is willing to reveal information about those who use its services ... and one can envision scenarios where queries alone could reveal identifying information about a specific Google user...."

Individual Names Are Next

"That is the crux of the matter," said Andrew Krcik, vice president of marketing for PGP, a provider of encryption and privacy-related software products. "The government could conceivably ask for individual names of people who searched for a specific term or phrase," he told TechNewsWorld.

In general, search engines have the capability to provide this information if a user has some relationship with the search engine, he explained. For instance, a user who has free e-mail from Yahoo (Nasdaq: YHOO) or Google, or an e-mail account with AOL, could very well have his or her search-term data compiled.

"Any time you log in to a portal or go through a provider's gateway, anything you do online can be tied directly back to you," Krcik pointed out. That includes not only search terms, but also instant messages and information on what products you purchase.

Consumers, for the most part, have been aware that privacy is not absolute on the Internet, although Krcik believes that many consumers are unaware of the extent to which their personal data is compromised.

Government Access

Personal information could be monetized for commercial purposes. The government's access to it is another issue altogether.

There is evidence that consumers may trust commercial enterprises with their sensitive personal information more than they trust the government, said JupiterResearch's Schatsky.

Allowing the government to access this information has far more profound implications than, say, giving it to a local bank interested in bidding for a consumer's business.

It is not against the law for a user to enter questionable search terms into an engine, Krent said. However, that data could still be used as ancillary or support data in a prosecution.

The examination of an individual's search terms could yield patterns of Web usage that hint at his or her associations or plans, Krent pointed out. "The government could use this as supporting information as part of the basis for a search warrant," he added.

It is not just a concern of individuals, Krcik noted. "Companies are at risk too. Think about what employees search for in the course of the day. That information can reveal a lot about what is going on at a particular company -- whether it is preparing for a product launch, or researching a new demographic, or preparing for a lawsuit."

The implications are endless, in fact, if the government is indeed using this case as a stalking horse to see what other data it can get from Google, as many fear. While consumers and companies imagine the worst-case scenario, behavior online is bound to change. That may be why Google decided it needed to draw the line early.

Google's resistance to the Department of Justice subpoena may be great PR, but the other engines' cooperation -- along with recent accusations that the government engaged in domestic spying -- will probably leave consumers with the uneasy feeling that their behavior will never be entirely free of Big Brother's snooping, Schatsky concluded.