Internet privacy in China and the U.S.

http://www.marketwatch.com/news/story.asp?guid=%7B54C61B89-2A96-4DAD-A844-A9B994AE79C7%7D&siteid=google

Internet privacy in China and the U.S.
Commentary: Google's battle has broad implications
By John Shinal, MarketWatch
Last Update: 6:01 AM ET Jan. 21, 2006

SAN FRANCISCO (MarketWatch) -- I'm not sure what's more troubling -- the 
fact that the U.S. government wanted to get its hands on the Internet 
search results of millions of its citizens, or that some of the leading 
search firms were so quick to provide the data.

Privacy -- or the lack of it -- on the Internet came screaming to the 
front burner this week on the news that Google Inc. was the only one of 
four major U.S. search engines to refuse a Justice Department subpoena to 
provide information on its users' search results.

Not that Google has always been the white knight. Like Yahoo Inc. and 
Microsoft Corp., Google has previously responded to government requests -- 
in China -- to censor or turn over its data.

Rather than tracking down and jailing dissidents, as the Chinese 
government did with information provided by Yahoo, the subpoena by U.S. 
Attorney General Alberto Gonzales is part of an effort to revive a 1998 
law designed to protect children from seeing or being exploited by online 
pornography.

The U.S. Supreme Court struck down the law as too broad in 2004, saying, 
among other things, that the government should give Web-filtering software 
a chance to work. See archived story.

Trolling through two month's worth of random results at the world's 
leading search engine, as the government's original subpoena requested, 
presumably would give Justice Department investigators a good read on what 
percentage of those searches were for child porn.

But some privacy advocates, coming to Google's defense, called the effort 
a fishing expedition that completely disregards the privacy of the 
millions of browsers who conduct innocent searches.

"This could have a chilling effect on how people use the Internet," said 
Evan Hendricks, who's edited and published Privacy Times newsletter in 
Washington, D.C., since 1981.

Even more troubling to Hendricks was that Google's search rivals, 
including Yahoo Inc. (YHOO: (, , ) and Time Warner Inc.'s AOL unit, did 
provide the government with search result data. Microsoft Corp. (MSFT:
, , ) declined to comment on whether it received a subpoena, but a lawyer 
for the American Civil Liberties Union, which sued to overturn the 1998 
law, told MarketWatch the software giant did.

Although AOL (TWX: (, , ) and Yahoo said they complied in a limited way 
that would keep its search users anonymous, Hendricks was skeptical of 
that guarantee.

"There's no way to be sure that those search results can't be used later 
to track people down for all sorts of reasons," he said.

One privacy lawyer not involved in the case agreed.

Under the Electronic Communication Privacy Act, government prosecutors 
have fairly wide latitude to subpoena emails and other electronic 
communications if they have probable cause to believe a crime has been 
committed, said Andrew Serwin, a partner with the law firm Foley & Lardner 
LLP.

If an individual user had made thousands of searches for child porn, for 
example, "there's nothing stopping federal prosecutors from issuing 
another subpoena to learn the Internet address of the person who made 
those requests," said Serwin.

I would argue that anyone exploiting children over the Internet deserves 
to be tracked down and prosecuted.

But what if the government decided to use the same method to track down 
people who used questionable tax shelters?

How much right should the government have to use private-sector records to 
troll for possible criminal activity?

"As a society, we have to decide how far the government can go to 
establish probable cause" that a crime has been committed, Serwin said.

Google has already paid a price for its refusal, at least in the stock 
market. Shares of the Mountain View, Calif.-based firm, whose stock has 
risen five-fold since it went public in August 2004, suffered their 
biggest percentage drop ever Friday. See full story.

On a day when the broader technology sector suffered its biggest point 
drop in more than two years, it's unclear whether the drop was due to 
general investor bearishness or fears that Internet users may be more 
reluctant to use search engines if they know the results could be reviewed 
by law enforcement agencies.

Google's shares dropped more than those of Yahoo, Microsoft and 
Time-Warner, which complied with the subpoena. Part of the Google 
bearishness stems from the cost that Google might incur from a protracted 
legal fight.

If Google decides to go to court, its success in resisting the government 
would turn on whether the government's request is allowed under a part of 
the Electronic Communication Privacy Act that deals with stored 
communications.

That law, according to Serwin, is "cumbersome, difficult to understand and 
has been interpreted in many ways" by various courts. "As written, it's a 
bad law," he said.

So much gray area makes it likely that the two sides may choose to 
compromise, rather than slug it out before a judge.

Google obviously has other things to do, like figure out how to get their 
search results on iPods. And should the government pursue the case and 
lose, its anti-porn efforts would be hamstrung.

Still, another privacy watcher said it's important that Google stand on 
principle.

"It's important that they fight this, or else every prosecutor is going to 
start using Google as its research service," said Jim Harper, director of 
information policy studies at the Cato Institute, a Washington, D.C., 
think tank.

Given the experience of Internet companies in China, it's important to 
draw the line now, according to Harper.

Last month, Microsoft Corp.'s MSN unit pulled the plug on a Chinese 
blogger who discussed politically-sensitive issues. Yahoo has also shared 
such data, which led to the conviction and jailing of a journalist, and 
Google itself has agreed to make its search results in that country 
amenable to surveillance.

"This request (for Google's data) is disturbing because it's the nose 
under the camel's tent," Harper said. If we're not careful, control and 
censorship of Internet data in this country "could look more like China 
than we thought possible," he said.

John Shinal is a technology editor for MarketWatch in San Francisco.

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