Google Fights US Request for "Porn" Data

Whether it is a First Amendment case or one of trade secret protection, Google is the only major search company refusing to honor a US Department of Justice request for both a week's worth of search queries and a "'random sampling' of one million Internet addresses accessible through Google." Microsoft, AOL and Yahoo have handed over data.

Why ask for the data?

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. The ACLU says Web sites cannot realistically comply with COPA and that the law violates the right to freedom of speech mandated by the First Amendment...

"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," ACLU staff attorney Aden Fine said.

According to the ACLU, COPA "would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but judged 'harmful to minors.'"

In order to breathe new life into the law, which has not been upheld in two Supreme Court challenges, the Administration has to show that the law would be more effective at protecting children from pornography that technical filters.

Google said that it was concerned that data on searchers for terms such as "marijuana cultivation" or "directv hacking" might have their profiles handed over to the FBI. According to Newsweek, a Department of Justice employee said,"I'm assuming that if something raised alarms, we would hand it over to the proper [authorities]."

The San Jose Mercury News reports that DOJ has a week to respond to Google's refusal, filed in court on Friday. A hearing is scheduled for 13 March in the San Jose US District Court.

The orginal government request, made in Augusts, was for two months of data.

COPA History
COPA has never been enforced. After it was signed, the Electronic Frontier Foundation (EFF), the ACLU, and the Electronic Privacy Information Center (EPIC) sued on free speech grounds. The Philadelphia federal district court and a federal appeals court judged COPA unconstitutional. In 2002, the Supreme Court remanded the case to the lower court; in 2004, it upheld the ban on enforcing the law.

After remand, the District Court of Appeals ruled as summarized here:

On remand, the Court of Appeals upheld the injunction again, holding that: (1) the plaintiffs had established substantial likelihood of prevailing on claim that COPA was not narrowly tailored to achieve the Government's compelling interest and therefore failed the strict scrutiny test under the First Amendment, and (2) the plaintiffs had established a substantial likelihood of prevailing on their claim that COPA was unconstitutionally overbroad.

In its 2004 decision, the Court directed the Philadelphia district court to "determine whether there had been any changes in technology that would affect the constitutionality of the statute."

Most coverage of the story has been in the foreign press and the San Jose Mercury News, which is the "hometown" paper for Google.

See 2004 Supreme Court decision (Justice Kennedy writing for the majority; dissenting, Breyer, O'Connor, Rehnquist and Scalia) ; 2002 Supreme Court decision (Justice Thomas writing for the majority ; dissenting, Stevens); Gonzales v. ACLU II contains background on the orginal case, Ashcroft v. ACLU, as well as this latest matter; How to protect kids privacy online.