On Friday, Judge James Ware, a U.S. District Judge in San Jose, CA, issued a decision in Gonzales v. Google, Inc., No. CV 06-8006MISC JW (Mar. 17, 2006), the case involving a government subpoena for Google search queries. A few days before Judge Ware released his opinion, he stated that he would be ordering Google to turn over some information, though not everything that the government was demanding. Media reports indicated a victory for the government, as these headlines suggest: “Judge Siding With Feds Over Google Porn Subpoena” (AP) and “Google Faces Order to Give Up Records” (Boston Globe).
But Judge Ware’s written decision strikes me as much more of a victory for Google and privacy than for the government.
The subpoena was issued because the government wanted information for use in ACLU v. Gonzales, No. 98-CV-5591, pending in the Eastern District of Pennsylvania. That case involves a challenge by the ACLU to the Child Online Protection Act (COPA), 47 U.S.C. § 231. Google wasn’t even a party to that case, but the government suboenaed from Google (1) URL samples: “[a]ll URL’s that are available to be located to a query on your comapny’s search engine as of July 31, 2005” and (2) search queries: “[a]ll queries that have been entered on your company’s search engine between June 1, 2005 and July 31, 2005 inclusive.” Subsequently, the goverment narrowed its URL sample demand to 50,000 URLs and it narrowed its search query demand to all queries during a 1-week period rather than the two-month period mentioned above. Google still raised a challenge, and the government again narrowed its search query request for only 5000 entries from Google’s query log.
Under Federal Rule of Civil Procedure 26, a subpoena may be quashed if the “burden or expense of the proposed discovery outweighs its likely benefit.” The court (Judge Ware) began by analyzing the government’s request for a URL sample, pointing out the paucity of the government’s explanation for its need for the information. The court observed:
The Government’s disclosure of its plans for the sample of URLs is incomplete. The actual methodology disclosed in the Government’s papers as to the search index sample is, in its entirety, as follows: “A human being will browse a random sample of 5,000-10,000 URLs from Google’s index and categorize those sites by content” and from this information, the Goverment intends to “estimate . . . the aggregate properties of the websites that search engines have indexed.” The Government’s disclosure only describes its methodology for a study to categorize the URLs in Google’s search index, and does not disclose a study regarding the effectiveness of filtering software. Absent any explanation of how the “aggregate properties” of material on the Internet is germane to the underlying litigation, the Government’s disclosure as to its planned categorization study is not particularly helpful in determining whether the sample of Google’s search index sought is reasonably calculated to lead ot admissible evidence in the underlying litigation.
One would think, after reading this paragraph, that the government has failed to establish a justification for the URLs. Nevertheless, the court attempted to “imagine” and “envision” a possible use for the information the government is seeking. The court then concluded that it would “give the Government the benefit of the doubt.”
This was the partial victory that the government won, and it wasn’t a very big victory. The second half of the opinion was all Google. This latter part of the opinion dealt with the government’s demand for search queries — the part of its demand that implicated privacy. The court rejected the government’s request for the search queries — even after the government had repeatedly backed away from its initial demands. The government had begun by demanding two months worth of search queries (constituting millions of queries); it then backed down and demanded queries for just a one week period (a substantial number of queries); and it recently had further retreated to asking for just 5000 queries. This was a dramatic retreat, but the court still sent the government packing.