Google is fighting the wrong battle on that subpoena
by Daniel Brandt
February 25, 2006
My response has been that Google is posturing, and it deserves to lose this case in court. Microsoft, Yahoo, and AOL did the right thing by complying with the subpoena, which is not to say that they are good guys. They'll probably do the wrong thing the next time they get a subpoena. The main problem with the Justice Department's request is that it's a slippery slope, and the next subpoena could request identifying information. But in this case the Department did not ask for, and does not want, any information that is personally identifiable. Google is hurting everyone's chances of prevailing on the next case, by advancing weak arguments on the current case. That's why I call it "posturing."
For years, Google has shown search-term statistics on their "Zeitgeist" pages, and they even break it down by country now. A big screen in the lobby of Google's corporate headquarters has a real-time display of search terms, along with the city or country where the search originated. Pornographic terms are filtered out before this data is analyzed or displayed, since it's designed as a gimmick to show how cool Google is. The Justice Department wants unfiltered data. A court has said that the government needs more information on how well the Internet is protecting children from access to porn.
This week the Department filed an answer to Google's misguided screed about trade secrets and "privacy perceptions" (yes, trade secrets are much more important to Google than privacy). The subpoena requested that Google remove any identifying information from the search requests. "The study does not involve examining the queries in more than a cursory way. It involves running a random sample of the queries through the Google search engine and categorizing the results," a statistics professor at the University of California said.
Google is worried that if they provide raw data on search terms, then everyone will know what many already know. The dark secret for search engines is that the protection of children gets a much lower priority than advertising revenue. For Google to even use the word "privacy" in this case is bogus.
Why did Google pick this particular fight, which is ill-advised at best? It may have been perceived as good short-term public relations. Ever since its IPO in 2004, most of the spin from the Googleplex is aimed at keeping its stock price in the stratosphere. One gets the feeling that much of this spin is disorganized, and devoid of any long-term considerations.
Ironically, Google's position on this subpoena has resulted in a substantial increase in Scroogle traffic. While Google-Watch and Scroogle have said for years that Google saves everything they can find out about you, and never deletes anything, during those years the pro-Google pundits ignored us. They just threw out some slurs about my tin-foil hat, and that was the end of the story for them. Now Google's position makes it clear that they do have the information that I said they had. Recently, Google even admitted to a reporter that they can call it up by the globally-unique ID in the cookie or by IP address. Google's position on the subpoena has broadcasted the same message in a few weeks, that I unsuccessfully tried to broadcast for more than five years. Among those who have so far heard about the subpoena, most had no idea that Google saved all that information. It's easy to see why Google thought their position would be well-received in the short term. How many superficial pundits have presented Google as heroic for its position on this subpoena? Now how many of them have ever mentioned the term "data retention" in same sentence as "Google" at least once during their career? If Google was interested in privacy at all, they wouldn't indefinitely save all that data that they collect on you. They don't need more than a few weeks worth to profile you, and it's not illegal to truthfully tell the government that the older data you once had, has already been deleted. But it never occurs to pro-Google pundits that if the data exists, it is subject to subpoena. The first questions should be, "Why does it exist at all? Why is Google saving all this stuff?"
Google's arrogance will be its downfall. Their undeserved wealth, 99 percent of which comes from ads that are the driving force behind web spam, has isolated them from reality. Increasingly Google lacks the capacity to assess the long-term consequences of its actions. They are starting to make mistakes. Most pundits don't notice this yet, because Wall Street loves bubbles.
Google needs a smarter legal department, and it will never happen. Larry, Sergey, and Eric make all the major decisions, and any lawyer with a realistic sense of what's happening in the legal, political, and social sphere, and can competently pick which battles to fight, would not get hired. He wouldn't be cool.
