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Court likely to rule against Google

Part of government's request may be granted

Google may have to turn over search-engine usage records to the US DoJ (Department of Justice) following a hearing yesterday in which the judge indicated he will probably order the company to comply with a government subpoena, according to published reports.

US District Court Judge James Ware said he is likely to issue such an order after the government said at the hearing that it is seeking significantly less information from Google than was called for in its original subpoena request, The Wall Street Journal reported in its online edition. The government is now asking for 50,000 URLs and 5,000 search queries, Nicole Wong, associate general counsel at Google, said in an email statement after the hearing, confirming that the request for information was scaled back.

Ware, of the US District Court for the Northern District of California, must decide whether the subpoena is justified, as the government argues, or whether it is overreaching and compromises the privacy of users, as Google contends.

The DoJ is happy with early reports of what transpired at the hearing, according to spokesman Charles Miller.

Ware is reportedly leaning toward granting at least part of the government's request, probably by ordering Google to provide data on random websites found on its search engine index. However, the judge also said he wants to be sensitive to users' concerns that evidence of their personal search behaviour may end up in the government's hands, according to press reports. Judge Ware reportedly indicated he would make a decision very soon.

"We're very encouraged by the judge's thoughtful questions and comments. They reflected our concerns about user privacy and the scope of the government's subpoena request," Wong said via email.

In January the government filed a motion with the court to compel Google to comply with its subpoena and turn over a "random sample" of one million website addresses found in its search engine index. It was also asked to provide the government with the text of all queries filed on the search engine during a specific week. AOL, Yahoo and Microsoft's MSN were also subpoenaed and complied to varying degrees.

At issue is the DoJ's defence of Copa, the Child Online Protection Act, whose constitutionality has so far been successfully challenged by the ACLU (American Civil Liberties Union) in an ongoing legal tussle.

Copa, which the ACLU argues violates the US Constitution's First Amendment right to freedom of speech, will again be debated in court in October, Miller said.

The Pennsylvania district court in which the Copa lawsuit was filed granted the ACLU's motion for preliminary injunction, and an appeals court affirmed it in 2000.

The case went to the US Supreme Court, which vacated the judgment of the appeals court and sent it back to that court, which in turn again affirmed the preliminary injunction. The Supreme Court again reviewed the case, but that time it affirmed the preliminary injunction and sent the case back for trial.

In defending Copa's constitutionality, the government wants to establish that the law is more effective than filtering software in protecting minors from pornographic material on the internet.

"Copa was passed to prevent certain types of materials from being accessed by minors. So in order to show that this was needed, we were trying to get a sample from four search engines – Google, Yahoo, MSN and AOL – of [query] terms and URLs," Miller said. The DoJ isn't seeking data that would identify individuals, he said.


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