Google set to defend challenge to U.S. subpoena

Eric Auchard

SAN FRANCISCO: Google Inc faces off against the U.S. Justice Department in federal court on Tuesday as the Internet company seeks to quash a subpoena for search data, including millions of user queries, in a battle over privacy issues on the Web.

Google will defend its motion to deny a demand by U.S. Attorney General Alberto Gonzales for data the government wants the company to produce as part of a separate case over the extent to which online pornography is a threat to children.

Google, based in Mountain View, California, is set to appear before Judge James Ware in U.S. District Court for the Northern District of California in San Jose to answer the government subpoena for a random sample of data.

The Justice Department's demand has raised concerns over how far customers can trust Google to protect the privacy of their search habits from government snooping.

The standoff with President George W. Bush's administration sent a chill through Google's stock when the challenge was revealed in January. But legal analysts say the company is on firm ground contesting the government's bid to compel its participation.

"The government has the obligation to come forth and make its own case," said Bruce Fein, a former general counsel of the Federal Communications Commission under President Ronald Reagan and now a principal in his own law firm.

"It is invading the privacy of Google as a business operation," Fein argued. "It's within Google's rights to tell the government to 'Get off my back.'"

Analysts said the Google case shows it is only a matter of time before the U.S. government may seek access to individual Internet records, just as federal agencies already can do for library or medical records.

"The rights we enjoy in our home are not the rights we enjoy with our computers," said Michael Parekh, an investor and pioneering Internet analyst formerly with Goldman Sachs.

"It creates an aura for an ordinary person where maybe they will think twice about the privacy of their Internet searches," Fein said.

Google also opposes the government request for data on the grounds it is being asked to reveal details on how its market-dominating search system operates.

Google's decision to fight the request contrasts with rival Internet companies Yahoo Inc. and Microsoft Corp., which complied after being assured no specific customer data was involved, only general lists of search terms.

The Justice Department has responded in legal filings that it is not asking Google to disclose any personal data, arguing the information is necessary for the government to defend its case and that Google trade secrets are protected.

The data is meant to support a separate case in which the Justice Department seeks to appeal a 2004 Supreme Court injunction of a law to penalize Web site operators who allow children to view pornography.

The issue boils down to whether Google's data is necessary to the Bush administration's case or "does nothing to further the government's case in the underlying action," as Google's motion opposing the demand argued last month.

Ware is likely to take a narrow procedural approach to the government request.

The 20-year-old Electronic Communications Act restricts government access to telephone and e-mail records but not Web site or search service data, one expert said.