Google, DoJ Face Off in Court Over Subpoena

The showdown between Google and the Department of Justice (DoJ) over the search engine’s refusal to turn over search records heads to court on Tuesday, with Google planning to argue that the right to privacy outweighs the government’s need for the information.

The two sides were scheduled to make arguments before a U.S. District Court judge in San Jose, Calif., as the Justice Department seeks to force Google to comply with an order that several of its competitors, including Microsoft and Yahoo, have already fulfilled. Judge James Ware had scheduled an hour to hear oral arguments from both sides. No decision is expected immediately, though the tenor of the discussion may indicate Ware’s leanings in the case.

Federal investigators want the search records to help bolster their arguments to the U.S. Supreme Court that a law relating to Internet access to child pornography is Constitutional.

Google believes the order, which seeks a random sampling of 1 million addresses that can be reached through Google’s search engine and a sampling of 1 million search queries submitted to the Google Web site during a single week, is too broad and amounts to a so-called fishing expedition rather than a focused investigation.

Google has further argued that the information will not help the government’s case, saying in a brief filed last month that it will “without a doubt, suffer a loss of trust among users” if forced to “compromise its privacy principles and produce to the government on such a flimsy request its search query and URL data.” The DoJ has countered by saying the privacy issues are not relevant since it has asked for only anonymous records.

Principle Defended

At issue is the Bush administration’s efforts to bolster the arguments behind the Child Online Protection Act, which seeks to restrict material that could be deemed harmful to minors from being posted on commercially available Web sites.

The U.S. Supreme Court said in 2004 that it was unable to rule on the constitutionality of the law and said a full trial needed to be staged before it could make a definitive ruling. Opponents of the law have argued that online filtering technologies perform the same function of keeping harmful information out of the hands of children without infringing on the free speech rights of adults.

For its stance, Google has won support from online privacy advocates and other groups. Those parties say the specific request being made in this case is not terribly onerous — the other search engines turned over records that were said to be scrubbed of any personally identifying information — but worry that it would start the industry down a slippery slope toward more privacy invasion.

Others, though, have accused Google of hypocrisy, since it has acknowledging cooperating with censorship demands of the Chinese government in order to earn the right to operate its Web search business in that country.

Long Road Ahead?

Even if Google is ordered to turn over the requested records, it still has the option to appeal such a decision and could extend the case for some time by using the court system.

It may well back down before then, however, as it weighs the risks of distraction at a time when it faces slower growth going forward and more competition from Microsoft and others.

Google has already set itself apart from its major competitors by refusing to comply with the order voluntarily, search engine marketing expert John Battelle told the E-Commerce Times.

“Even if it’s forced to comply by the courts, Google can point to how it tried to stand up for its users’ privacy,” he said. While it likely won’t say it, the implication will be that other search engines have a lower standard for preserving privacy, he added.

Such a public relations coup could well be a much-needed salve for Google at a time when it has dealt with several missteps in recent weeks.

Its stock has recently been battered by its CFO’s off-the-cuff comments about slowing growth and the inadvertent posting of financial projections on its Web site. It also grabbed attention by moving to settle a class action lawsuit alleging widespread click fraud.

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