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Defense of Controversial Internet Law Does Not Justify  “Fishing Expedition,” ACLU Says

NEW YORK – The American Civil Liberties Union today urged a California federal court to reject the government’s demand for millions of Google search records, saying that it has not justified the need for obtaining massive amounts of consumer information.

“The government is not entitled to go on a fishing expedition through millions of Google searches any time it wants, just because it claims that it needs that information,” said ACLU staff attorney Aden Fine. “Anyone asking a court to approve such an intrusive, burdensome request must explain why the information is needed and for what purpose. The government has refused to make its purpose known to the public or to the Court, and   Google has rightly denied the government’s demand for this information.”
 
In legal papers filed today, the ACLU urged the U.S. District Court for the Northern District of California to rule in favor of the Internet search giant’s effort to block the government’s subpoena for information about its customers’ online behavior. 

The Google controversy arose in connection with the ACLU’s challenge to the “Child Online Protection Act” (COPA), which would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but judged “harmful to minors.”

The ACLU’s clients in the COPA challenge include Salon.com, Urbandictionary.com,  Nerve.com, Condomania, Philadelphia Gay News and Dr. Mitch Tepper's “Sexual Health Network,” among others.

The government has claimed it needs the Google records for its defense of  the law.  But  the ACLU said in its brief that the government has failed to describe how the millions of Google user records will help it to determine how much material deemed “harmful to minors” is available online.

A federal district court in Philadelphia and a federal appeals court found the COPA law unconstitutional, and the Supreme Court upheld the ban on enforcement of the law in June 2004.  The Justices, however, also asked the Philadelphia court to determine whether there had been any changes in technology that would affect the constitutionality of the statute, such as whether commercially available blocking software was still as effective as the banned law in blocking material deemed “harmful to minors.”

The ACLU has brought other successful challenges to state "harmful-to-minors" laws in Michigan, New Mexico, New York, Arizona and Vermont. A case brought in Virginia also resulted in a "harmful-to-minors" law being struck down. The ACLU noted that the state challenges were successful because of the impossibility of verifying the age as well as location of Internet users, as the law requires.  

The law firm Latham & Watkins has been representing the ACLU on the COPA case since 1998 and also participated in the successful challenges to similar laws in New York and Arizona. The firm is serving as counsel in today’s Google filing as well.

The motion is set for hearing on Monday, March 13, 2006 at 9:00 a.m. before Judge James Ware of the United States District Court, Northern District of California, San Jose Division.

The ACLU's legal papers opposing the government's demand for Google's records is online at www.aclu.org/privacy/internet/24211lgl20060217.html

More information on the case, ACLU v. Gonzalez, is online at  www.aclu.org/freespeech/internet/14985res20040629.html