Response to the DoJ motion
Posted by Nicole Wong, Associate
General Counsel
In August, Google was served with a subpoena from the U. S.
Department of Justice demanding disclosure of two full months’
worth of search queries that Google received from its users, as
well as all the URLs in
Google’s index. We objected to the subpoena, which started a set of
legal procedures that puts the issue before the Federal courts.
Below is the introduction to our response to the Department of
Justice's motion to the court to force us to comply with the
subpoena. You can find the entire response
here. (This is a 25-page PDF file.)
I. INTRODUCTION
Google users trust that when they enter a search query into a
Google search box, not only will they receive back the most
relevant results, but that Google will keep private whatever
information users communicate absent a compelling reason. The
Government's demand for disclosure of untold millions of search
queries submitted by Google users and for production of a million
Web page addresses or "URLs" randomly selected from
Google's proprietary index would undermine that trust,
unnecessarily burden Google, and do nothing to further the
Government's case in the underlying action.
Fortunately, the Court has multiple, independent bases to reject
the Government's Motion. First, the Government's
presentation falls woefully short of demonstrating that the
requested information will lead to admissible evidence. This burden
is unquestionably the Government's. Rather than meet it, the
Government concedes that Google's search queries and URLs are
not evidence to be used at trial at all. Instead, the Government
says, the data will be "useful" to its purported expert
in developing some theory to support the Government's notion
that a law banning materials that are harmful to minors on the
Internet will be more effective than a technology filter in
eliminating it.
Google is, of course, concerned about the availability of materials
harmful to minors on the Internet, but that shared concern does not
render the Government's request acceptable or relevant. In
truth, the data demanded tells the Government absolutely nothing
about either filters or the effectiveness of laws. Nor will the
data tell the Government whether a given search would return any
particular URL. Nor will the URL returned, by its name alone, tell
the Government whether that URL was a site that contained material
harmful to minors.
But, the Government's request would tell the world much about
Google's trade secrets and proprietary systems. This is the
second independent ground
upon which the Court should reject the subpoena. Google avidly
protects every aspect of its search technology from disclosure,
even including the total number of searches conducted on any given
day. Moreover, to know whether a given search would return any
given URL in Google's database, a complete knowledge of how
Google's search engine operates is required, inevitably further
entangling Google in the underlying litigation. No assurances, no
promises, and no confidentiality order, can protect Google's
trade secrets from scrutiny and disclosure during the course of
discovery and trial.
Finally, the
Government's subpoena imposes an undue burden on Google without
a sufficiently countervailing justification. Perhaps the Government
can be forgiven its glib rejection of this point because it is
unfamiliar with Google's system architecture. If the Government
had that familiarity, it would know that its request will take over
a week of engineer time to complete. But the burden is not
mechanical alone; it includes legal risks as well. A real question
exists as to whether the Government must follow the mandatory
procedures of the Electronic Communications Privacy Act in seeking
Google users' search queries. The privacy of Google users
matters, and Google has promised to disclose information to the
Government only as required by law. Google should not bear the
burden of guessing what the law requires in regard to disclosure of
search queries to the Government, or the risk of guessing
wrong.
For all of these reasons, the Court must reject the
Government's Motion.
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