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Defense of Controversial Internet Law Does Not Justify  “Fishing Expedition,” ACLU Tells Federal Judge

SAN JOSE, CA – At a hearing today before a federal judge, the American Civil Liberties Union will urge the 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. “Given the government’s continued vagueness about why it needs these vast quantities of consumer records, Google has rightly denied the request.”
 
In legal papers filed before Judge James Ware of the U.S. District Court for the Northern District of California, the ACLU argued 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."
 
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 government has claimed it needs the Google records for its defense of the law.  But the ACLU said that the government has failed to describe how the millions of Google user records will help it to determine whether the software is effective and if the law is constitutional. Government papers filed recently in response to the ACLU and Google briefs still do not explain how the customer information will be used and why it is necessary, the ACLU said.
 
The ACLU’s clients in the COPA challenge, ACLU v. Gonzales, include Salon.com, Urbandictionary.com,  Nerve.com, Condomania, Philadelphia Gay News and Dr. Mitch Tepper's “Sexual Health Network,” among others.

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 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 ACLU v. Gonzalez is online at  www.aclu.org/freespeech/internet/14985res20040629.html