Update: Google subpoena debated in court

Google and the U.S. Department of Justice (DOJ) on Tuesday went before a judge who has to decide whether the search engine operator needs to comply with a government subpoena requiring it to turn over search usage records.

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With the hearing now over, Judge James Ware, from the U.S. District Court for the Northern District of California, must decide whether the subpoena is justified, as the government argues, or whether it is overreaching and compromises the privacy of users, as Google contends.

The DOJ is happy with early reports of what transpired at the hearing, said DOJ spokesman Charles Miller. "If my reports are correct, that the judge ruled that Google had to turn over the information that we had requested, we're pleased," he said.

Early press reports indicate that Judge Ware said he is leaning toward granting at least part of the government's request, probably by ordering Google to provide data on random Web sites found on its search engine index.

However, the judge also said he wants to be sensitive to users' privacy concerns that evidence of their personal search behavior may end up in the government's hands, according to press reports. Judge Ware reportedly indicated he would make a decision very soon.

Nicole Wong, associate general counsel at Google, said in an e-mail statement, "We're very encouraged by the judge's thoughtful questions and comments. They reflected our concerns about user privacy and the scope of the government's subpoena request."

The government in January filed a motion with the court to compel Google to comply with its subpoena and turn over a "random sample" of 1 million Web site addresses found in its search engine index. It also asked to provide the government with the text of all queries filed on the search engine during a specific week. America Online, Yahoo and Microsoft's MSN were also subpoenaed and complied to varying degrees.

At Tuesday's hearing, the government said it now wants significantly less data from Google than it originally requested, according to press reports. Wong confirmed that the government is now asking for 50,000 URLs (uniform resource locators) and 5,000 search queries.

At issue is the DOJ's defense of the Child Online Protection Act (COPA) law, whose constitutionality has so far been successfully challenged by the American Civil Liberties Union (ACLU) in an ongoing legal tussle.

COPA, which the ACLU argues violates the U.S. Constitution's First Amendment right to freedom of speech, will again be debated in court in October, Miller said.

The Pennsylvania district court in which the COPA lawsuit was filed granted the ACLU's motion for preliminary injunction, and an appeals court affirmed it in 2000.

The case went to the U.S. Supreme Court, which vacated the judgment of the appeals court and sent it back to that court, which in turn again affirmed the preliminary injunction. The Supreme Court again reviewed the case, but that time it affirmed the preliminary injunction and sent the case back for trial.

In defending COPA's constitutionality, the government wants to establish that the law is more effective than filtering software in protecting minors from pornographic material on the Internet.

"COPA was passed to prevent certain types of materials to be accessed by minors. So in order to show that this was needed, we were trying to get a sample from four search engines -- Google, Yahoo, MSN and AOL -- of [query] terms and URLs," Miller said. The DOJ isn't seeking data that would identify individuals, he said.