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Google vs. DoJWhy the subpoena fight is all about public relations.

By Adam L. Penenberg
Posted Wednesday, Jan. 25, 2006, at 12:29 PM ET

The legal fracas between Google and the Department of Justice has chilled more than a few seemingly mild-mannered citizens. When we're at home, the illusion of privacy and anonymity allows our ids to slay our superegos. Let's not pretend that we haven't used the Internet to explore ideas we'd just as soon not share with friends, colleagues, family, or government prosecutors. Put another way: If you knew someone was looking over your shoulder when you Googled, would it change what you searched for?

Every time you get online, you're taking a leap of faith. After all, lots of people know who you are: search engines, your ISP, Web-mail providers, the news sites you register for. Could these records ever get out and embarrass you? (Or worse, land you in jail?)

There's no immediate need to worry. Law enforcement doesn't really care about what you do online—unless you're Tommy Chong selling bongs or a pedophile looking to make a date with a 14-year-old. Neither does Google. For both the government and the geek Goliath, this subpoena brouhaha is simply a big public-relations stunt.

The Bushies say that they've subpoenaed Google's search records to show that filtering software won't stop children from accessing porn. In 2004, the Supreme Court cited First Amendment concerns in striking down the Child Online Protection Act, which required that adult sites implement age-verification policies. To buttress a future appeal, the Justice Department wants Google to send along every search from a one-week period. The government claims this list would help it "estimate how often Web users encounter harmful-to-minors material in the course of their searches, and to measure the effectiveness of filtering software in screening that material."

Let me save the government some work. If the DoJ wants porn, Google isn't a bad place to start—it just depends on which keywords you use. If you type in "69," "fuck," and "breast," you get almost no porn—at least in the first several pages of results. (You will find sites dedicated to Woodstock, Dick Cheney's penchant for using expletives, and boob jobs.) "Orgasm" gets you legit sites. "Cum" gets you XXX. Usually, you have to be looking for salacious material before you'll encounter any.

Filtering search results is, at best, an imperfect solution, but the fact that it's hard to find porn by accident on Google shows that it works well enough. Besides, with boatloads of XXX material sitting on foreign servers, filters have a better chance of preventing children from accessing porn than the Child Online Protection Act—which would regulate only American pornographers—ever would. Any attempt by the United States government to regulate porn will fail, just like attempts to stamp out online gambling have failed. There's just too much easily accessible gambling and porn that's not subject to U.S. law.

Let's not forget Google's part in this PR game. Even though the Justice Department insists Google can strip away any information that could be linked to individual users, the company refuses to cooperate. Its lawyers have objected to the subpoena on several grounds: It lacks "relevancy," it's redundant (since Yahoo! and Microsoft already caved), and the company's trade secrets would be violated. (Um, how?) These are pretty weak defenses. Nevertheless, the self-professed do-gooder corporation has little choice but to stand up to DoJ's fishing expedition—otherwise, how could it justify storing records of every search you make? It may not win, but fighting will burnish its image.

Even though nothing substantive will come out of it, this privacy fight may do some good. For one thing, the subpoena has made Web surfers realize the company is the biggest personal-data pack rat this side of the NSA. This has all been a useful reminder that, even in our most private digital moments, someone is watching.

In the end, it's up to you to protect yourself. If you signed up for Gmail, you had to provide personal information, meaning your searches could theoretically be tracked back to you by cross-referencing them with Google's cookie and your IP address. If you're paranoid, stop using Gmail and regularly delete your cookies. Even if Google promises not to do anything evil with the data it collects, it can't guarantee that the government—which has been handing out subpoenas like they're Pez candy lately—won't be tempted to do evil deeds with it 10, 20, or 50 years down the line. Yahoo! recently turned in a Chinese journalist. Someday, Google might be forced to turn you in.

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Adam L. Penenberg is an assistant professor at New York University and assistant director of the business and economic reporting program in the school's department of journalism. You can e-mail him at .
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