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By silicon.com, 20 January 2006 09:20

NEWS

Federal prosecutors preparing to defend a controversial web pornography law in court have asked AOL, Google, Microsoft and Yahoo! to hand over millions of search records - a request that Google is adamantly refusing.

In court documents filed on Wednesday, the Bush administration asked a federal judge in San Jose, California, to force Google to comply with a subpoena for the information, which would reveal the search terms of a broad swath of the search engine's visitors.

Prosecutors are requesting a "random sampling" of one million internet addresses accessible through Google's popular search engine, and a random sampling of one million search queries submitted to Google over a one-week period.

Google said in a statement on Thursday that it will resist the request "vigorously".

The Bush administration's request, first reported by The San Jose Mercury News, is part of its attempts to defend the 1998 Child Online Protection Act (Copa), which is being challenged in court in Philadelphia by the American Civil Liberties Union (ACLU). ACLU said websites cannot realistically comply with Copa and that the law violates the right to freedom of speech mandated by the First Amendment.

The search engine companies are not parties to the suit.

An attorney for ACLU said AOL, Microsoft and Yahoo! received identical subpoenas and chose to comply with them rather than fight the request in court.

Yahoo! acknowledged on Thursday that it complied with the Justice Department's request but said no personally identifiable information was handed over. A Yahoo! spokeswoman said: "We are vigorous defenders of our users' privacy. We did not provide any personal information in response to the Justice Department's subpoena. In our opinion this is not a privacy issue."

The spokeswoman declined to provide details but court documents in the Google case show the government has been demanding "the text of each search string entered" by users over a time period of between one week and two months, plus a listing of websites taken from the search engine's index.

ACLU staff attorney Aden Fine said: "Our understanding is that MSN and AOL have complied with the government's request, that Yahoo! has provided some information in response but that information wasn't completely satisfactory [according to] the government."

Jack Samad, senior vice president for the National Coalition for Protection of Children and Families, a Cincinnati, Ohio-based advocacy group, said search engines should be willing to help the Bush administration defend the law.

Samad said: "Young people are experiencing broken lives after being exposed to adult images and behaviours on the Internet. I'm disappointed Google did not want to exercise its good corporate branding to secure the protection of youth. I think [complying with the subpoena] would substantiate the basis of Copa if they get a free exchange of information on youthful use of the internet."

An AOL spokesman confirmed the company received a subpoena from the Department of Justice (DOJ) but said the information from ACLU was not accurate.

He said: "We did not and would not comply with such a subpoena. We gave [the DOJ] a generic list of aggregate and anonymous search terms, and not results, from a roughly one day period. There were absolutely no privacy implications. There was no way to tie those search terms to individuals or to search results." He declined to elaborate further.

A Microsoft representative said: "MSN works closely with law enforcement officials worldwide to assist them when requested... It is our policy to respond to legal requests in a very responsive and timely manner, in full compliance with applicable law." The company would not confirm or deny whether it complied with the DOJ's subpoena.

But in a statement released later in the day on Thursday, Microsoft said it was, in fact, contacted by the DOJ.

The company said: "We did comply with their request for data in regards to helping protect children, in a way that ensured we also protected the privacy of our customers. We were able to share aggregated query data [not search results] that did not include any personally identifiable information, at their request."

In a motion filed on Wednesday, prosecutors said compliance is necessary to prove that the 1998 law is "more effective than filtering software in protecting minors from exposure to harmful materials on the internet". Records from search logs would help to understand the behaviour of web users and estimate how frequently they encounter pornography, the motion said. For instance, internet addresses obtained from the search engines could be tested against filtering programs to evaluate their effectiveness.

A subpoena dated August 2005 requests a complete list of all internet addresses that can "be located" through Google's popular search engine, and "all queries that have been entered" over a two-month period beginning on 1 June, 2005. Later, prosecutors offered to narrow the request to random samples of indexed sites and search strings. It's unclear what version of the request AOL, Microsoft and Yahoo! complied with.

Although the government is not asking for internet addresses that would identify people, some legal experts fear that disclosing search terms would invade privacy.

Peter Swire, a law professor at Ohio State University, said: "The more [the government] can figure out who the surfers are, the more people's First Amendment rights are in jeopardy."

The Justice Department declined to comment on Thursday. But in court papers, it said that even though other search companies voluntarily complied, excerpts from Google's logs are "of value to the government" because it has the "largest share of the web search market".

To analyze the logs, the Justice Department has hired Philip Stark, a professor of statistics at the University of California, Berkeley. Stark said in a statement that analysing information from Google would let him "estimate the prevalence of harmful-to-minors" and the "effectiveness of content filters" in blocking it.

Google, for its part, "is not a party to this lawsuit and [the government's] demand for information overreaches", associate general counsel Nicole Wong said in a statement. "We had lengthy discussions with them to try to resolve this but were not able to and we intend to resist their motion vigorously."

The Bush administration's request is tied to its defence of Copa, which restricts the posting of sexually explicit material deemed "harmful to minors" on commercial websites, unless it's unavailable to minors.

A trial before US District Judge Lowell Reed is scheduled to begin on 2 October. ACLU attorney Fine said although the dispute with the search companies does not directly involve his organisation, until prosecutors "explain what they plan to do with this and provide a detailed explanation, they cannot meet their burden to justify forcing Google to turn over this information".

Privacy watchdogs have long worried about the massive store of data that Google has assembled about the online behaviour of internet users.

Sherwin Siy, staff counsel at the privacy rights advocacy organisation Electronic Privacy Information Center (Epic), praised Google for fighting the administration's request. However, he said there would not even be an issue if the search engine hadn't collected the information in the first place.

He said: "This continual aggregation of people's search streams and all this information and the other data from their other services like Gmail places privacy at risk. This is something you would think Google should have anticipated. It is not a recent phenomenon that overbroad government investigations will put people's privacy at risk by digging through business records."

Epic's Siy said AOL and MSN should have fought the government's demands more vigorously. "In not doing anything to protect the privacy of their customers they are not doing the right thing," he said. "They are taking the easy way out."

CNET News.com reporters Anne Broache and Greg Sandoval contributed to this report

Declan McCullagh and Elinor Mills write for CNET News.com