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Response to the DoJ motion
February 17, 2006
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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