Why not subpoena all of us? The US vs. Google -- and us.

I believe that the record of personal interests and actions which is captured in the logs of search engines and other internet sites is just as revealing, private, and intimate as the personal data that resides on our hard disks, in the filing cabinets of our homes and offices, or hidden on papers slipped under our mattresses... Neither the government nor anyone else should have any more right to access our personal data via Google than they would have to access the same data stored in our own private places.

The goverment demands via subpoena that Google turn over records of one week of private users' searches so that it can build a case to support a question of policy embodied in a law (COPA) that has been rejected by the courts. Although Google is not a party to any proceedings in this non-criminal matter, the government claims that Google still has an obligation to provide the personal information since Google as "[t]he non-party witness is subject to the same scope of discovery under [Rule 45] as that person would be as a party to whom a request is addressed pursuant to Rule 34. [Fed. R. Civ. P. 45, advisory committee's notes to 1991 amendment.]" See Page 5 lines 23 to 25 of the Government's Motion to Compel.

I believe the government seeks Google's cooperation since it will be less burdensome to get the data from Google than from us individually. It can not be argued that it would be easier to get the aggregated data concerning the search behavior of millions of americans from Google rather than issuing a blanket subpoena forcing all americans (as non-party witnesses) to deliver up a record of their personal searches. Given the current state of computer technology, we undoubtedly have means to ensure that even if individual americans were forced to give up their data, it would be possible to build systems that would remove just as much "personally identifiable" information from what was submitted as Google is capable of removing. The government could easily, although not cheaply, build a system that takes the individual submissions from individual private citizens, aggregates them, and processes them to produce an effective duplicate of the data that Google might submit in response to this subpoena. The government is essentially demanding that Google build and employ precisely such a system to satisfy the government's demands -- if Google hasn't already done so for other purposes.

Given that the results of the two possible subpoena's would be substantially identical, except in cost of implementation, we should not support a right to one subpoena unless we would also support (at least in principle) a right to the other. If we can accept the government's right to  subpoena all of us in this case, then there may be a case for seeking to reduce the burden of obtaining the data by using Google as a convenient and cost-effective proxy for individual service.

Before we address the question of how burdensome it may be to respond to a subpoena, we must first answer whether or not the government has the right to the data which the subpoena demands. I believe no such right exists in this case. If the government's demands were less broad, or involved a specific prosecution rather than an issue of policy, it is entirely possible that I would feel otherwise... In this case, Google should be commended for refusing to respond to the government's subpoena. Any other services that did provide the demanded information should be condemned and shamed for having done so.

bob wyman

Comments

[Michael Weiksner]

You pose an interesting thought experiment about rights. But isn't the relevant question why use google?

There does seem something really bad about anyone have all that personal data aggregated in one place. Why contribute to that, when you can protect yourself by only accessing google anonymously or using a less well-known search engine that doesn't have as much value as an aggregator of personal info.

[Bob Wyman replies: My personal feeling is that the problem doesn't lie in the fact that the information has been aggregated in one place. Rather, I think the real risk here is that we will allow ourselves and others to think differently of the information aggregated at sites like Google than we think of the unaggregated information that we hold individually. The mere fact of aggregation isn't itself the problem. Only if we afford less protection to the aggregated information than we do to our unaggregated information do we risk misuse of that information by the government, by Google themselves or by some other agent...]

[Richard Veryard]

This looks like a "long tail" argument. Getting data from Google (the aggregator) represents a short-tail strategy for the US government. Using obscure search engines represents a long-tail strategy for the privacy-conscious consumer. In an asymmetric world, neither strategy is stable.

[Malcolm Pollack]

Hi Bob,
You may be overlooking an important legal asymmetry here. I think one could defensibly assert that since Google, in contrast to individual users, is the conduit through which all of the search-strings flow, Google qualifies as a "non-party witness" in a way that any individual user does not. The inquiry by the government is seeking search-strings _in aggregate_ in order to do statistical analysis. Individuals are not material witnesses to this aggregate data, whereas Google is.

Having looked at the relevant lines in the government's brief, it is rather difficult for me to see on what grounds Google can refuse the subpoena, unless there is already in place some specific confidentiality privilege as exists between doctors and lawyers and their customers. I don't think such protection exists in this case, though.

[Mike]

Bob

Watching with interest the problems you are encountering. May I say that you are approaching this very much the wrong way. Not your fault as this is a new arena for you. I may be able to help solve the problem for you or at the very least give you food for fault. I should know what I am talking about as I have been voted the UKs Number One Corporate and Governmental trouble-shooter for 8 years. You still have time to make the other shareholders think carefully - very carefully about their actions. Undoubtedly legal eagles are advising them - you need no less yourself.