Last week when Judge James Ware announced his decision to compell Google produce, MarketTrustee introduced the idea that a DOJ "win" was a marginal threat to First Amendment protection. I was not at all impressed by CW asserting Google's key role in defense of personal privacy was its database, much less the pertinence of privacy in disposing COPA's legitimacy.
This weekend Google feasted on victory -- "Google Avoids " or "Google Rebuffs" -- along with class action allegations of blacklisting. Associate General Counsel for the corp Nicole Wong issued a googleblog.blogspot exclusive statement titled "Judge tells DOJ 'No' on search queries" which coyly admitted
privacy was not the most significant legal issue in this case (because the government wasn't asking for personally identifiable information)
Having read Ware's
decision in full as well as procedural background, I'm furious. Google grandstanding was a complete waste of time. And despite 8 years preparation and serial-killer injuctive "relief", I'm convinced the "winning" strategy behind ACLU v Gonzales 98-cv-5591LR E.D. PA is still a bluff.
What is absent in media hurrahs is an appreciation for fumbling on both sides. Fear and loathing of Gonzales in the blogsphere is blinding. Adoration of Google's ubiquitous motto and soaring stock is blinding. Neither proves team DOJ stupidity or GOOG industrial maturity.
But the ACLU's offside intent to exploit Google glamour does expose the underlying vulnerability of the First Amendment complaint (FAC). It rests on the narrow assumption the fed is interested in censoring individuals -- when Congress has clearly expressed its interest in regulating commercial trade in "harmful to minors" web content (Article I). The ACLU is focussed on obstructing fed name acquisition. The fed is focussed on classifying particular website content for the purpose of satisfying SCOTUS test which presumably indemnifies COPA.
doooohhhh. (That's the mantra that ran through Ware's mind as he dictated his ruling.)
Much was made of DOJ's December 2005 demand for Google queries because of an incomprehensible volume of data, estimated at 50B or more URL-keyword pairs. Had CW inquired, many would have been surprised and annoyed to find DOJ's decidedly low-tech plans for process the Google deliverables.
"a human being will browse a random sample of 5,000-10,000 URLs from Google's index and categorize those sites by content" (Supp. declaration of Philip Stark) and from this information "estimate the aggregate properties of the websites that search engines of indexed."
DOJ played close to the vest, much to Ware's irritation. He writes, "The hearing neither confirmed nor denied the court's speculations about the study. in fact, the government seems to indicate that such a study is not what it has in mind: '[T]he government seeks this information only to perform a study, in the aggregate, of trends on the internet.' "
The ACLU went into the hearing, for the most part nagging in its brief:
If the government cannot even tell Plaintiffs if all their [sic] websites contain harmful to minors material or how the government would interpret and enforce COPA were it to go into effect, it is unclear how the government will be able to determine the quantity of harmful to minors websites accessible through Google or the other search engines. Nor is it clear how the government will be able to determine if filtering products effectively block harmful to minors websites if the government cannot figure out if the websites are harmful to minors in the first place.
In the first place, DOJ's subpoena did not specify Google real estate. In the second, it was under no procedural or esquire "fair use" obligation to disclose anything other than ultimate finding that filtering is at least as restrictive as COPA in "chilling" adult free speech.
SCOTUS (2004) specifically requested in fact-finding by DOJ a performance measurement of filtering technology, e.g. "the percentage of time that blocking and filtering technology is over- or under-inclusive" of adult content that would disprove the ACLU. DOJ's mandate is to disprove ACLU's contention that filters are less restrictive than COPA proposed rules.
Frankly, the ACLU's position is more bizarre than the history of faulty filters and rating systems. Epic.org, which filed with ACLU vs Gonzales (August 2005), has published two editions of Filters & Freedom, a survey of filtering implementation in a number of countries since 1997. In it researchers explain how these systems "facilitate the suppression of speech far more effectively than national laws alone." In fact, SCOTUS readily promoted "incentives" to enforce through public programs in libraries and schools in order to "enable" parents.
Then in hearing, Google instructed DOJ that "the presence of [Google's] safe search filter, customized searches, or advanced preferences" generated qualitatively superior, differentiated results associated with individual users ... as if the granularity of Google indexing applied to the standard of relevance under rule 26 or the validity of DOJ's intended "study."
Persuasive? Sexy? Ware's Solomon-like judgement of URL and keyword comparative value deferred to the 3-ton polished granite Federal Rules of Civil Procedure -- Rule 45, 34, and especially 26b. He quashed DOJs request for strings and stated, in particular, that Google's opinion of DOJ quality standards was irrelevant to the motion in hand. Ware reasoned, with 50K URLs, DOJ's need for any more data would be funamentally redundant.
What's it to you: Will the Google/ACLU alliance tip over future digital rights litigation? Can the ACLU continue on its own steam? Pyramid Watch continues an examination of disorder tomorrow with "Google me Lustre"