Google's Privacy Win Could Be Pyrrhic Victory

Google scored a partial victory in its battle to keep its search data out of the hands of the government. It may be a costly win.

Federal Judge James Ware ruled last week that Google must turn over 50,000 URLs from its index to the government, but not users' search queries. Last August, the Department of Justice sought all the URLs in Google's index and two months worth of search queries.

The government hopes to use Google's data to prove that Internet filters can't effectively shield minors from adult material online. In so doing, it aims to reinstate the 1998 Child Online Protection Act (COPA), which was blocked by the courts when the ACLU and other groups challenged the constitutionality of the law.

In a blog post, Nicole Wong, associate general counsel of Google, characterized the decision as "a clear victory for our users and for our company. ... Because we resisted the subpoena, the Department of Justice will not receive any search queries and only a small fraction of the URLs it originally requested."

"What Google did here was actually a brave and important thing," says Stephen Ryan, a partner at law firm Manatt Phelps & Phillips in Washington, D.C. "They challenged what the government was doing and the government had to cut down, in its negotiations and in the court's ruling, what they had to turn over."AOL, MSN, and Yahoo have said that they complied with the government's requests in a limited way and did not violate their privacy policies in the process. But staking out the middle ground between spinelessness and sedition hasn't proven to be a public relations coup.

Google's resistance, however, has provided some redemption following the flak it took for cooperating with the Chinese government's censorship requests. "From a branding standpoint, they've done something quite important," says Ryan.

Even so, Ryan says the issues raised in this case are not going to go away. "The Justice Department, under its current management, has an almost insatiable desire for different pieces of information and they're going to continue to seek those under any authority that they have," he observes. "I think Google will pay a tremendous price for having challenged the DoJ. ... The Department of Justice has a long memory for these things."

Part of that price likely will be future lawsuits. In his ruling, Ware anticipates that the pornography study the government intends to conduct will be challenged based on the incompleteness of the sample data provided by Google, resulting in discovery efforts by other litigants. He writes, "[T]his Court is concerned that a narrow sample of Google's proprietary index and query log, while in itself not likely to lead to the disclosure of confidential information, may act as the thin blade of the wedge in exposing Google to potential disclosure of its confidential commercial information."

It's a safe bet: As long as search engines have revealing data, lawyers will come. In January, Microsoft acknowledged that it has already complied with a second subpoena from the Department of Justice as well as one from the ACLU about the company's Web filter and parental control product development.Aden Fine, staff attorney for the ACLU, says he expects that his organization and the other plaintiffs hoping to halt COPA will need more information from the four search companies. "We have already told AOL that it's likely we will need to do that discovery if the government relies on information provided by AOL regarding its search engine," he says. "And we've also so informed Microsoft."

Google had better hope its winning streak continues.