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Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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March 15, 2006

Google and the DOJ: I'm Feeling Watched

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Posted by Wendy Seltzer

Newswires and other media were buzzing yesterday over the Justice Department's subpoena to Google for search terms and URLs. The buzz got louder when Judge Ware indicated in court that he was likely to order Google to respond, at least in part. (Londoners might have seen me interviewed on the BBC news.)

The story converged the public's interest in everything Google with concern about government spying and the erosion of privacy online -- even if little of that privacy was ever directly at issue here. The government asked for search terms and a selection of URLs, not the IP addresses that could most directly link terms to the users who searched for them; its stated purpose was not to investigate individuals but to gather pieces that would help DOJ defend the Child Online Protection Act, a prohibition on showing material "harmful to minors" that has been on constitutional hold since its enactment in 1998. Google opposed the request, saying it called for trade secrets, was unduly burdensome, and further, that it might chill some of the search engine's users.

Even more than an actual privacy violation, the subpoena raised the preception of a privacy breach. News of the subpoena started many people thinking about how much of their personal lives they turn over to search engines -- and how little they know about what happens with that information next. With a government intent on listening to communications without warrants, could this subpoena be the first step toward a broader sweep of search engine records for other purposes? Our current privacy laws don't do a great job of protecting the information we turn over to third parties, such as search engines. Google could help protect privacy by keeping less data, but its business interests won't always align with its users' privacy wishes. The interest in the DOJ-Google subpoena shows we need to do better.

When a newspaper obtained records of then-Judge Bork's video rentals duringn 1987 hearings on his nomination for the Supreme Court, the public and members of Congress were similarly shocked that these records were so easily available. In response, Congress passed the Video Privacy Protection Act, prohibiting disclosure of video tape rental records without a warrant or court order. Though limited to sale or rental of "prerecorded video cassette tapes or similar audio visual materials," the VPPA stands out as one of our strongest privacy protection laws.

The DOJ's subpoenas for search records should be web searches' "Bork moment." Search engines, and our comfort in using them unobserved, are a key part of the Internet's vitality. If no current law protects us against government Googling our Google records, it's time to draft a law that does.

Comments (3) + TrackBacks (0) | Category: Privacy


COMMENTS

1. Seth Finkelstein on March 15, 2006 12:17 PM writes...

Good points. But it should be noted historically that *some* of the firestorm was inflamed by sloppy reporting that made it sound like the government was trying to dig through the search records as a data-mining expedition against child-pornographers.

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2. Joe Mamma on March 15, 2006 4:03 PM writes...

The obvious point here is that the government likes doing things that are illegal. When asked if there was spying going on in the U.S. the president just shrugged his shoulders and replied with something like, "Yeah...and what of it punk?!" THAT'S just what we KNOW ABOUT!

This Child Protection crap is just as the article says: first step into MORE spying. The Act has already been struck down by the Highest Court! Doesn't that mean that they can't enforce any kind of legal action based on an illegal platform?!

Guard yourself intensely GOOGLE! It becomes clear that your trade secrets will be $old to whoever the government feel$ like after thi$ judge grant$ them, even limited, acce$$. We have already $een the true intention$ of the Executive Branch. (I'm ju$t glad we don't have a pre$ident with a ve$ted intere$t in keeping oil price$ high!)

Permalink to Comment

3. melissa on April 22, 2008 4:23 AM writes...

hey cool From me and my friends

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