JEFFREY BROWN: Google, the nation's leading search engine, has maintained its independent streak as the company has grown from two guys in a garage to a multi-billion dollar company.
Now, that streak is showing up as the company is rebuffing the Bush administration's demand to review records of what millions of people have been googling, raising larger privacy concerns about online information.
The Mountain View, Calif. company has refused to comply with a subpoena first issued last summer and revived this week when U.S. Attorney General Alberto Gonzales asked a federal judge in San Jose for an order to hand over the requested file.
The attorney general had this to say today:
ALBERTO GONZALES: We're trying to gather up information to -- in order to help the enforcement of federal law to ensure the protection, quite frankly, of our nation's children against pornography.
There have been other Internet service providers that have been forthcoming in the sharing of information. We're not asking for the identity of Americans. We simply want to have some subject matter information with respect to these communications.
JEFFREY BROWN: Millions of people use Google every day to get information. The company fields some 3,000 searches per second. Some use the search engine to access sexual content, which is plentiful.
For example, the search term "sex sites" turns up some 65 million hits in a matter of seconds. At issue is the 1998 Child Online Protection Act aimed at cracking down on "adult" sites.
Courts have blocked enforcement of the law. The Department of Justice is now fighting to keep it and asking Google and others for more information, specifically: A list of all requests entered into Google's search engine during a random single week. That would total tens of millions of queries.
In addition, it seeks one million randomly selected web addresses from various Google databases. But Google executives said in a statement "their demand for information overreaches. We intend to resist their motion vigorously."
The government requested the same information from Google's rivals with varying results. Yahoo says it complied with the subpoena but did not provide personal information.
AOL says it provided only publicly accessible information about search terms but did not comply with the subpoena.
Microsoft would not confirm or deny if it supplied what the government requested.
JEFFREY BROWN: And now, a look at the issues in this case and beyond, with: Jerry Spiegel, an attorney who focuses on Internet law-- he's a partner at the law firm Frankfurt, Kurnit, Klein and Seltz in New York; and Marc Rotenberg, executive director of the Electronic Privacy Information Center, an advocacy group-- he also teaches information privacy law at Georgetown University. The Department of Justice and Google declined invitations to join us.
Mr. Spiegel, starting with you, first explain what the government says it wants to use this data for.
JERRY SPIEGEL: Well, the government says they want to use the data to support their position that the Child Online Protection Act needs to be upheld by the federal courts.
JEFFREY BROWN: And Mr. Rotenberg, it doesn't appear that this data identifies individuals.
MARC ROTENBERG: Well, that's not clear, Jeff. As we understand it, in the search request, Google expressed concern that they may not be able to protect the identities of individuals that could be extracted from the URL's that are disclosed.
The Department of Justice has taken the position they think it can be done.
JEFFREY BROWN: What concerns do you have? What do you think about Google's position on this?
MARC ROTENBERG: Well, I think in this instance, Google is taking a very good position defending the privacy of people who use the Internet, and the reason it's so important in this case is because the government's claim is so extraordinary.
This is not a situation, for example, where the government goes to the telephone company and says, "Give us some records of your customers because we think these people have engaged in criminal conduct." And that's a classic search for the government.
In this instance, the government is going to Google because they want a vast amount of data to analyze and use in an unrelated court proceeding, which is the defense of COPA in Philadelphia.
JEFFREY BROWN: Mr. Spiegel what, do you see as the privacy issues here? Is there a protection for Google?
JERRY SPIEGEL: Well, this raises a really fundamental issue of privacy.
You know, for the last ten or so years, the big battle has been over the use of personal information by private industry, and lawyers know that government is restricted under the Constitution from unreasonably invading our privacy, but we've had to fight to address the issue of privacy on the private sector.
Now, we're back to dealing with the issue of to what extent the government has the right to access this information. And you have to keep in mind that, again, over the last 15 years, the amount of data that has been collected about all of us is enormous, and if the government has the ability to access that information, it opens a specter of a complete loss of privacy for everyone in America.
JEFFREY BROWN: Well, so what do you see in this case, Mr. Spiegel? The government is saying that it's a kind of broad, and not a targeted look at individuals.
JERRY SPIEGEL: Well, I think, actually, that this raises the issue as to whether or not we as a country need to re-address the issue of privacy.
The Constitution was written 200-some-odd years ago in an era when the ability to be virtual didn't exist. And so the world is a different place.
And our laws and protections need to, you know, understand that and reflect that.
JEFFREY BROWN: And do you see Google as having a good case? I mean, will they be compelled eventually to give up the information?
JERRY SPIEGEL: I think they will. I think they will because, again, as individuals in our society, the information that we share with third parties is not protected by privacy. So the government has a right to get to that information because we've made it public by sharing it with a third party.
JEFFREY BROWN: What do you think about that?
MARC ROTENBERG: Well, I actually disagree with that analysis. I mean, in the first instance, we have a lot of privacy laws that protect ourselves information when we turn it over to third parties. This can include everything from a bank to videotape service provider, and the key point about these privacy laws is that they create exceptions for understandable legal circumstances where disclosure should occur.
So, for example, I talked about a criminal investigation. That would be one exception. Civil discovery might be another. Consent would be a third.
Now, we look at the facts in this case involving the government's request to Google, this is, in effect, a subpoena to the organization that is now backed by a request from a court to compel -- that's what the government is seeking. And it is so broad, and it seems to be so far outside the traditional parameters of these types of requests, I would actually be surprised if the judge grants the Department of Justice motion.
JEFFREY BROWN: I read today, Mr. Rotenberg, that search engines and e-mail providers are asked for information on specific people by law enforcement and in civil lawsuits in hundreds of cases a year.
MARC ROTENBERG: Yes --
JEFFREY BROWN: And they often comply.
MARC ROTENBERG: Well, that's correct, but this is the important distinction: In other words, if the government has reason to believe, a probable cause, some appropriate Fourth Amendment standard in the context of a criminal investigation and goes to a business and says, "We need this information in your possession for our criminal investigation," we understand that it would be appropriate in those circumstances for the business to provide the information.
That's what the Fourth Amendment requires. But that's not what what's happening here. This isn't about a criminal investigation. This is about the government saying there's a vast amount of information in the possession of Google that would be useful to us in this other matter, and we simply want them to provide it. And I don't see how a court in those circumstances can grant this request.
JEFFREY BROWN: Mr. Spiegel, if Google accedes to the request, or is compelled to, as you say, what is to prevent the government from seeking more information down the line in other cases?
JERRY SPIEGEL: Well, I'm not sure that there is anything that would prevent them to.
And I agree with what Mr. Rotenberg is saying, but I think the issue here is at some level whether or not the government really is seeking personal information. They claim not to be, and I agree, there may be some question about it, but I think to the extent that they're seeking to obtain generic information, that there's nothing in the law that would actually prohibit their obtaining it.
JEFFREY BROWN: So, Mr. Spiegel, you raise this issue of looking anew at 21st Century privacy law. Broaden this out for us. What do consumers need to know now, given this case and what likely is to come?
JERRY SPIEGEL: Well, I think they need to learn a lesson from this that perhaps as Scott McNealy said a couple of years ago, your privacy is already lost, and it's a really important issue, and I think people need to pay attention to it; we need to pay attention to it as a society, and my hope, frankly, is that this will spark a reaction that will get us to focus on those issues.
JEFFREY BROWN: Our privacy is already lost?
MARC ROTENBERG: Well, I think that's an unfortunate response. I mean, I think the better way to think about this is to say we have new technologies that are useful. We have law enforcement needs; we understand those.
We should be able to have privacy laws in place that allow us to use the new technology that protect our privacy and respect law enforcement needs. And we've managed to do this over the years with a whole range of new technologies, everything from the telephone to computer databases to junk faxes, even the telephone calls that we used to get, you know, in the evenings.
I don't think anyone threw up their hands and said, "Let's just get used to telemarketing. That's the way the world is going to be." The FTC and Congress and others got together and enacted legislation. And I think we need a similar spirit with these types of challenges. This isn't about being against law enforcement. It's about ensuring that our legal safeguards for privacy carry forward into the 21st Century.
JEFFREY BROWN: You know, Mr. Rotenberg, just recently I interviewed two authors of new books about Google, and one of them said that, given the vast amount of information that they collect, that it was one headline away from raising these kinds of concerns about privacy. And today we have a headline.
MARC ROTENBERG: I was going to say, I think this week there are probably hundreds of headlines, but that's true, of course. I mean, the larger problem here, which has always been of concern to the privacy community, is the collection of this information. And I think Google is doing the right thing today in opposing the government's request.
But as long as those data repositories exist, there will always be the risk of government access, of access by others and misuse. And I think a long-term solution will require looking more closely at how we limit the collection of personal information.
JEFFREY BROWN: And Mr. Spiegel, we just have about 30 seconds, but does it -- it also implies that the companies involved, Google and other, are they taking action, looking forward to protect the data that they collect?
JERRY SPIEGEL: Well, again, I'd like to say that I totally agree with what Mr. Rotenberg is saying. I think that this becomes an increasing issue. This is as much a PR issue for Google as it is a legal issue because their concern is being forced to comply with the subpoena is going to have a material adverse effect on people's willingness to use their service.
JEFFREY BROWN: All right, Jerry Spiegel, and Marc Rotenberg, thank you very much.
JERRY SPIEGEL: Thank you.