From the Trenches:The Google-DOJ Showdown

U.S. District Court Judge James Ware ultimately handed the Bush administration a partial victory over Google. Ware decided Google must turn over to the U.S. Department of Justice a few thousand Web sites it has indexed, which in turn will used as evidence in a separate court case.

Ware made his proposed ruling at the end of a court showdown March 14.

For more, see here.

What follows are snippets from the only court appearance the two sides made:

WARE, on some factors he’s taking into account: “I have to balance the interests of society and private companies. The closer the case comes to the government pulling a file from the file cabinet, the closer it gets to protected trade secrets. There’s also been concern about this perception that any searching is now open to government scrutiny.”

WARE, again on factors he’s considering: “A slew of trial attorneys and curious social scientists could follow suit. Now Google could face hundreds of university professors and ‘I’ve got a study I’d like you to conduct.'”

WARE on what he’s now to do: “I will make a decision very quickly. I need to study how to shape [my order] to minimize the burden on Google.”

Here’s some give and take between Ware and Joel McElvain, the DOJ’s attorney.

The following concerns how AOL, Yahoo and MSN have already turned over search terms and a percentage of their index to prosecutors. The government is using the data to determine how effective Internet filters are. The findings will be used as evidence in another trial.

WARE: “Why don’t you have enough?”

McELVAIN: “The report we are preparing would be improved if there was information from Google. We could submit a report without it.”

WARE: “So if I find your request is a burden to Google, I wouldn’t hobble your study?”

McELVAIN: [AGREES]

Here’s some back and forth concerning what the government will do if the data it gets from Google includes the search terms “Osama bin Laden” or something else warranting possible further action.

WARE: “I’m not sure the government can ignore the relationship if they see Osama bin Laden and [the name of one of Ware’s law clerks].”

(A few giggles)

WARE: “Would you ignore it.”

McELVAIN: “Yes.”

Ware and Albert Gidari, Google’s lead attorney, also engaged in several exchanges. Here’s a sampling:

The following involves how the government significantly reduced its demands upon Google. Rather than billions of Web sites, as it originally asked for, the DOJ now only wants a few thousand.

WARE: “Within that smaller universe, do you have the same problem with disclosure” of personal information? “Should I be concerned with disclosure of trade secrets?”

GIDARI: “In that smaller universe, the effect would be much more constrained…But if you were one of the thousand or so people in this process, you wouldn’t be happy.”

During his 15-minute argument before the judge, Google’s attorney Gidari brought up alternatives to asking Google for its customers’ key words or Web sites.

GIDARI:”During this hearing, he [the DOJ attorney] could have run 1,000 searches through Google. He could have gone to Dogpile.com and looked at their display of search terms. They can goto Alexa, [a search engine] which has indexed 4 billion URLs, and has all the tools to test all day long.”

Aden Fine, an attorney representing the American Civil Liberties Union, also spoke for several minutes, during which he described what the government has actually received from the search engines that are cooperating.

FINE: “Our understanding from the governmment is the government got one set of search engine data that is useful, and a a second set of data that is only partially useful. They made no mention of the third” search engine.