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February 19, 2006

The Litigation Implications of the Google Subpoena

The latest action in the government's attempt to uphold the Child Online Protection Act (COPA) comes in a filing by the American Civil Liberties Union in the Northern District of California.  The ACLU is fighting the government's attempts to get massive amounts of data from Google as it has from Yahoo!, AOL, and Microsoft.  The government seeks the data to introduce statistical information that would show that web filters are not as effective as COPA would be in keeping harmful material away from children.

The ACLU is the plaintiff in the main suit being tried in Philadelphia.  There, the courts have granted and upheld an injunction forbidding the government from enforcing the law.  The Supreme Court also upheld the injunction but allowed that the issue should go to trial as technology has changed since the lower court faced the issue. 

The brief is divided into two sections.  The first challenges the government request by saying that the government has not shown how the information would help their case, or how the material is to by analyzed.  The second part says that if the motion to compel is granted, then the ACLU will be back to seek even more detailed discovery such as information as to how the search engine works, how many urls are in the database, and other information in order to place any government assertions in context.  The organization stresses that it has no desire to seek this information from Google unless the government relies on this information.

Although the brief never mentioned this, there is the prospect that if the government uses their information booty from the other three search engines, you can believe that the ACLU will be serving subpoenas to get the same contextual information.  This could lead to some interesting business consequences, most of them likely unintended when this whole litigation started. 

The brief is here.  Declan McCullagh has a good take on this at CNET.

February 19, 2006 | Permalink


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