In a story that's about to wake up a lot of people to some fairly scary possibilities, the federal government has asked a judge to force Google to turn over search records that were subpoenaed. Google initially refused to do so. Google is defending its decision by saying that it's both a violation of the privacy of its users and that turning over the data would reveal trade secrets. The specifics of the case are a bit worrisome, because the government is specifically asking for the data to try to prove that the Child Online Protection Act (COPA) is necessary. We've discussed problems with that law in the past, and the Supreme Court agreed that it was problematic -- though, offered the government a chance to make its argument again. It's no surprise, actually, that they subpoenaed Google. After all, in the original defense before the Supreme Court, Solicitor General Theodore Olson tried to use the Google results count for "free porn" as proof of why the law was needed. As we noted at the time, the Justices saw through that argument immediately, pointing out that just because there are search results on that term, it doesn't mean they're all pornographic -- meaning such numbers don't prove much. However, it appears the government's lawyers have figured out that superficial evidence from Google isn't enough -- so they might as well get a lot more detailed info, in the form of one whole week's worth of search results. This is worrisome, in part, because by hiding this behind the "protecting kids from porn" argument will distract from the real issue, and could set a bad precedent. It's also worth noting that the government claims other search engines had no problem at all turning over similar data -- which may be the most worrying point. John Battelle points out how this could destroy the public's trust in search engines while Michael Bazely raises some additional issues about this government action, including comparing it to the new European data retention laws. As Bazely points out, this may not turn out to be the "watershed" case many are expecting concerning the privacy of our data -- but it's certainly going to shine a bright light on a lot of legal questions that have remained unanswered. Update: It's now been confirmed that Yahoo, MSN and AOL were all asked and complied, though it appears that some (such as Yahoo) simply gave search terms with no identification information. That's better than nothing, but it still does raise some questions about where the line would be drawn. Update 2: Tech Law Advisor has posted a copy of the subpoena.
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