Thoughts: On the outrage over the Google subpoena

Ok- if you've read (you haven't, trust me, I track this stuff) the past few articles I've written you might have gotten a sense that my main ambition is to balance necessary constraints on the liberties granted by the internet with the characteristics necessary for innovation and relatively free communication. This includes everything from encryption law to network neutrality to those pesky cookies I have on my browser from visiting sites like fbi.gov.

In the wake of the Google subpoena, I have decided that one of the HUGE overarching problems that face the evolution of the internet is a decisive trend towards retroactive, as opposed to proactive measures. "Of course!" You might very well exclaim. "The government is pretty bad at fixing problems AFTER they happen, what makes anyone think that they can accomplish anything BEFORE it happens?"

The rub is, I'm talking about private companies, not the government. Quickly though, a synopsis on what's going on from the San Francisco Gate:

In an effort to revive a 1998 pornography law struck down by the U.S. Supreme Court two years ago, the Bush administration filed papers with a San Jose judge Thursday asking the popular search engine to hand over millions of records. The data, it contends, will help the government "understand the behavior of Web users" and prove that the law is more effective in protecting minors from pornography than filtering software.

I'm a fairly stringent advocate of structuring the internet in a manner where explicit material is kept separate from the rest of the data on the internet- thus my support for measures like ICANN's .xxx domain. However, trying to gauge the exposure of children to internet pornography by tracking the seemingly infinite list of search terms used by internet users is like trying to track violence among young children by searching what people rent at the video store: the causal link is so blurry it's insignificant. Just because x or y search term might generate a few links to pornography does not show 1) that children are using the search term 2) that children are not supervised by adults when using the search term and 3) that children, upon using the search term, are either affected directly (i.e. by suffering some tort-like damage from even viewing the porn link) or indirectly (i.e. by clicking on said porn-link).

In short, the administration's reasoning for tracking the information sucks.

But, and here's where the pro/retro-active stuff comes in, the government's action does not necessarily violate the ever-ambiguous right of privacy. The Detroit Free Press claims that "Such a blanket release by Google would clearly violate the privacy rights of its users." Not necessarily, and part of the reason is tied up with what actions Google itself has done.

First, Google has been collecting this information for as long as they've been in existence, as have the other large search engines companies: AOL, MSN, Jeeves, ect. And privacy advocates have been pretty quiet until the big scary government steps in because hey, THEY want this information too! I don't understand the double standard that a private company can essentially track the search terms I use for their own uses but the government can't. I'm not a supporter of the Bush Admin, and I think that frankly much of their conservative-inspired-free-speech-jeopardizing policies on the internet are loathsome. But that doesn't make this particular policy illegal (even if misguided) as many assert. It is necessary to note that in Google's response to the subpoena (scroll down a bit for the long letter by Ashok Ramani, Exhibit B) its main reasons for not giving up the search results are 1) the feds can receive this information from other sources like archive.com (the feds, of course, claim they can't) and 2) to disclose this information would expose trade secrets of the company. Words like "privacy" and "civil liberties" don't appear.

Second, if Google responded using a privacy argument there might be a slight philosophical contradiction between the companies defense and their approach to Google Library. As I wrote earlier, one of the main objections to Google library is that it allows a search of books without the authors consent- implying that such a search does not constitute a breach of privacy. Same thing with Google maps- Google can make satellite pictures of my house available, and I can't do anything about it. So with all this information gathering, to claim that concerns with "privacy" are the basis for objecting to the gov's request might backfire. I'm not saying search terms, books, and maps constitute the same level of intimacy or data, but the underlying philosophy that an information search does not violate privacy remains the same.

...so as far as I see it, there's no real protection for such information. Either its a problem for the company to be collecting data without my consent, or its not a problem for the gov to access that data. In a well articulated take on the legal aspects of the case, law professor Daniel J. Solove writes:

One enormous problem is that the Supreme Court has established an immensely troubling doctrine in Fourth Amendment law known as the "third party doctrine." In United States v. Miller, 425 U.S. 435 (1976), the Supreme Court held that people lack a reasonable expectation in their bank records because "[a]ll of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business."” Employing analogous reasoning, in Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that people lack a reasonable expectation of privacy in pen register information (the phone numbers they dial) because people "know that they must convey numerical information to the phone company,"” and therefore they cannot "“harbor any general expectation that the numbers they dial will remain secret."” When there's no reasonable expectation of privacy, the Fourth Amendment provides no protection.

The problem with the third party doctrine is that in the Information Age, countless companies maintain detailed records of people'’s personal information: Internet Service Providers, merchants, bookstores, phone companies, cable companies, and many more. The third party doctrine thus severely limits Fourth Amendment protection as more of our personal information winds up in the hands of businesses.

He seems to conclude that Google's opposing the request is a good thing, albeit Fourth Amendment protection is fairly weak. In a , he makes the argument:

there's another reason why revealing to the government even de-identified search queries might pose a privacy problem -- the act of complying might chill people in the future from conducting searches on Google. Why? Because it may be possible later on for the identities to be reattached. Thus, if the goverment obtains the search records, isolates certain searches as "troubling" and then issues another subpoena to Google for the IP addresses connected to those searches, there's a chance that the searches can be identified. In other words, the government's subpoena now need not be the final step in the dancesubpoenasbpeonas may follow. And knowing this, people may be chilled in their searches.

Does the slippery slope argument hold up? I'm not sure, because it doesn't follow that just because LATER events that take place might violate privacy make current actions unjustified. Yes, I don't want searches to result in the government pushing for further disclosure on searches that it deems troubling, but that's not what's at issue here. In the end, a lot of outrage does not = a legally sound argument... and privacy, sadly, is not going to be the argument that wins this case. To be plausible, Google would have had to set out to protect privacy in the first place, which it hasn't. If Google succeeds, I imagine it will be due to a very well thought out position on private property and protection of trade secrets, with little to do with the 4th amendment.

(image from PC World)