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more on Search queries *can* contain personal information

From: David Farber <dave () farber net>
Date: Sun, 22 Jan 2006 13:44:30 -0500


Begin forwarded message:

From: Pamela Jones <pjgrok () mac com>
Date: January 22, 2006 1:30:21 PM EST
To: dave () farber net
Subject: Re: [IP] more on Search queries *can* contain personal information 

RE what Henrik asked:

"In the third bullet point they say that they will share it to satisfy
any applicable law, regulation, legal process or enforceable
governmental request. IANAL, but I thought that a legally obtained
subpoena would fall into that category. If the request on top of that
are search URLs and search terms from one week, all separatd from
personal identifying information, then I think that they are creating
a storm in teacup. If thy were to challenge the legality of this,
shouldn't they (again IANAL) at least file something to that effet,
rathere than just flatly refusing to comply."
Obtaining a subpoena, as Henrik puts it, implies a criminal action, which this isn't. This is civil, whereby a party just mails out what it wants, and the receiving party can analyze to see if it meets with the Federal Rules of Civil Procedure. Just because you get a civil subpoena, it doesn't mean you just hand over everything asked for without that analysis. The Federal Rules of Procedure permit objections to a subpoena. Here's Rule 26, on scope of discovery: http://www.law.cornell.edu/rules/frcp/Rule26.htm You can read about protective orders here: 
http://lexnet.bravepages.com/Rule26.htm
Google has presented its legal objections to the subpoena in a letter to the government, which you can read as an exhibit attached to the Declaration of Support of the government's just filed Motion to Compel. Google hasn't had time yet to file its official response, but it no doubt will.
You can read Google objections in the McElvain declaration, in the letter from Google, an attached exhibit on page 14-18, which you can get from Findlaw: 
http://news.findlaw.com/nytimes/docs/google/gonzgoog11806.html
or from Groklaw, http://www.groklaw.net/index.php, in News Picks.
One issue Google has, I gather from what it wrote, is that the government was saying that they would need proof of randomness of the sample, so their statistician would have to "direct the selection." Google's objection is that there is nothing in the Federal Rules of Procedure that permits a party issuing a subpoena to direct how the receiving party should proceed.
It also objects on the grounds that the subpoena is burdensome, vague and intended to harass and further that it seeks information (a) not relevant to a claim or defense of the underlying lawsuit or reasonably calculated to lead to the discovery of admissible evidence; (b) the information is available from a party to the litigaation, which Google isn't a party to; (c) is available from a public source; (d) is subject to attorney-client, attorney-work- product or joint-intereest protections; or (e) is privileged, confidential, or trade-secret information. 

Google writes:
"Defendant seeks to defend the constitutionality of the Child Online Protection Act ("COPA"). In Google's understanding, Defendant would use the one million URLs requested from Google to create a sample world-wide web against which to test various filtering programs for their effectiveness. Google objects to Defendant's view of Google's highly proprietary search databasae -- the primary reason for the company's success -- as a free resource that Defendant can access and use, some levels removed, to formulate its own defense. This is not an appropriate use of the federal courts' subpoena power.
"Moreover, Google's acceding to the Request would at least imply that Google views its search database as completely reflective of the world-wide web. As I explained during our last telephone call, Google does not hold itself out in this fashion, and in fact resists that notion. It is against Google's competitive interest to be viewed as completely reflecting the world-wide web.
"Google also objects to this Request because Defendant can obtain the information from public and other sources. For example, www.archive.org actually holds itself out as reflecting the entire world-wide web. Defendant states that it has attempted to use www.archive.org, but found the results unsatisfactory. Google does not know what efforts Defendant took -- given www.archive.org's stated purpose, one would expect them -- with an appropriate consulting relationship -- to create the results that Defendant seeks. More broadly, Defendant's dissatisfaction with other information sources does not authorize Defendant to seek proprietary information from Google.
"Google further objects to this Request as seeking redundnat information. Defendant has already received URLs from at least one other major search engine. It is unclear why Defendant believes it needs URLs from Google.... 

"Google would also be unduly burdened if it were to respond....
"Finally, Google objects because to comply with the Request could endanger its crown-jewel trade secrets....
"Moreover, Google's acceding to the Request would suggest that it is willing to reveal information about those who use its services. This is not a perception that Google can accept. And one can envision schenarios where queries alone could reveal identifying information about a specific Google user, which is another outcome that Google cannot accept."
These are all objections to a subpoena. There are more objections listed to specific requests. 

The government's response is on page 20 onward.


Pamela Jones
Editor, Groklaw
www.groklaw.net



David Farber wrote:




Begin forwarded message:

From: Henrik Brameus <blondino () gmail com>
Date: January 21, 2006 2:38:10 PM EST
To: dave () farber net
Subject: Re: [IP] more on Search queries *can* contain personal information 

Hello Dave,

If you think it's relevant, please forward to IP

Henrik

One thing that I find curious about this whoe incident is that
Google's privacy policy
(http://www.google.com/intl/en/privacypolicy.html#information) sas the
following about information sharing:

<blockquote>Information sharing

Google only shares personal information with other companies or
individuals outside of Google in the following limited circumstances:

- We have your consent. We require opt-in consent for the sharing of
any sensitive personal information.
- We provide such information to our subsidiaries, affiliated
companies or other trusted businesses or persons for the purpose of
processing personal information on our behalf. We require that these
parties agree to process such information based on our instructions
and in compliance with this Policy and any other appropriate
confidentiality and security measures.
- We have a good faith belief that access, use, preservation or
disclosure of such information is reasonably necessary to (a) satisfy
any applicable law, regulation, legal process or enforceable
governmental request, (b) enforce applicable Terms of Service,
including investigation of potential violations thereof, (c) detect,
prevent, or otherwise address fraud, security or technical issues, or
(d) protect against imminent harm to the rights, property or safety of
Google, its users or the public as required or permitted by law.
</blockquote>

In the third bullet point they say that they will share it to satisfy
any applicable law, regulation, legal process or enforceable
governmental request. IANAL, but I thought that a legally obtained
subpoena would fall into that category. If the request on top of that
are search URLs and search terms from one week, all separatd from
personal identifying information, then I think that they are creating
a storm in teacup. If thy were to challenge the legality of this,
shouldn't they (again IANAL) at least file something to that effet,
rathere than just flatly refusing to comply.

Henrik


On 21/01/06, David Farber <dave () farber net> wrote:




Begin forwarded message:

From: Bill Stewart <bill.stewart () pobox com>
Date: January 20, 2006 7:59:03 PM EST
To: dave () farber net
Subject: RE: more on Search queries *can* contain personal information 

Lauren commented on the wide range of things that people search for,
and it keeps getting wider as Google and other search engines
add features.  I regularly type in names, phone numbers, addresses,
and lat/longs, IP addresses, AS numbers, patent numbers, Cisco part
numbers, etc., sometimes to find maps, or businesses, or phone book
information, and there are a number of websites I use for business
for which Google is a much more effective search tool than the site's
own indexes.  Sometimes I've even typed in my own name when looking
for cached versions of mailing list articles in the distant past
(non-specific ego-surfing isn't very useful if your name's not
sufficiently unique - AltaVista had over 50,000 hits for people
with similar names when it first came out - but there are times that
specific searches are useful.)

As somebody who regularly used Google during the specified period,
do I have a right to object to the court if Gonzales wants my data?
I hereby declare any phone numbers, addresses, and medical information 
in my searches to be Confidential, though the subpoena doesn't allow
the recipients to declare their entire document as Confidential.
Furthermore, the subpoena indicates that for every document not
produced by Google due to confidentiality or trade secrecy, the
respondents want the authors' and recipients' names, addresses, dates, 
etc. - but for this type of information, that disclosure includes
the confidential portion and more, not less.

Gonzales et al. allege that they're looking for information about the
effectiveness of web filters as a tool for protecting children, so they want to look at popular search terms to see what people are looking at. 
But if I search for a term like "Scooter Libby", am I looking for
information about him as an friend, or a Republican Henchperson,
or a well-known pornographer?  His original request wanted _all_ the
search terms, including my attempts to find relatives' current mailing addresses, and makes it available to all attorneys and employees of the Department of Justice who are involved in the case - but that's all of 
them, given Gonzales's War on Obscenity, and nothing in the subpoena
forbids them from making other uses of the information, such as using
my searches for medical marijuana information for Drug War purposes.
Brad Templeton talks about issues of identifying IP addresses, and the 
Tor project certainly helps - but there are other web surfing privacy
tools, like The Anonymizer and other proxies, which are generally
faster, more scalable, and effective at protecting content, though
they're still susceptible to subpoenas for any information that
they may have retained.

               Thanks; Bill Stewart



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--
"If you're right 98% of the time, why quibble about the remaining 3%?"
Henrik Brameus - http://www.benitel.com/ - blondino () gmail com.invalid
MSN: hbrameus () hotmail com


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