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The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Lots of concern over the last few days about the government supoena of Google search records. But is this really a “fishing expedition” in the traditional sense of that term? Subpoenas and wiretap orders not justified by adequate prior suspicion are properly rejected as ‘fishing expeditions’ — an effort by a prosecutor to either look amongst innocent behavior for someone who might be committing a crime, or to look at someone who seems guilty where the cops can’t figure out what s/he did without snooping through lots of records. These government practices are rejected by the Fourth Amendment and general fairness as abuses of government power where there’s no clear link between the target of the fishing and actual suspicion of a crime. The Fed’s effort to pry into Google’s files (about the rest of us) are different. Unless the Justice Department is using this a ruse to catch people who are violating obscenity or child pornography laws, what’s going here is more of an effort to gather general evidence about the content of the Web than an effort to fish around in search of crimal behavior. That doesn’t make it any better, but it does probably explain why the other three large search engines have already compied.

In a strongly worded critique of the Justice Department action, the New York Times editorial board (Fishing in Cyberspace - New York Times, 21 January 2006) writes:

Enough is never enough, not when the government believes that it can invade your privacy without repercussions. The Justice Department wants a federal judge to force Google to turn over millions of private Internet searches. Google is rightly fighting the demand, but the government says America Online, Yahoo and MSN, Microsoft’s online service, have already complied with similar requests. This is not about national security. The Justice Department is making this baldfaced grab to try to prop up an online pornography law that has been blocked once by the Supreme Court. And it’s not the first time we’ve seen this sort of behavior. The government has zealously protected the Patriot Act’s power to examine library records. It sought the private medical histories of a selected group of women, saying it needed the information to defend the Partial-Birth Abortion Ban Act in the federal courts.

Strong stuff. I certainly agree that there are lots of big questions raised by the subpoena, but am not sure I go as far as to see it as part of a Bush Administration conspiracy to invade our privacy. More likely, this is Justice Department officials trying desperately to win First Amendment blessing, after numerous losses, for what I think is a fruitless approach to child protection.

The editorial continues:

The battle raises the question of how much of our personal information companies should be allowed to hold onto in the first place…. When pressed on privacy issues, Google - whose informal motto is “Don’t be evil” - says it can be trusted with this information. But profiling consumers’ behavior is potentially profitable for companies. And once catalogued, information can be abused by the government as well. Either way, the individual citizen loses.