Federal Subpoena—Google

The Bush administration is attempting to revive a child pornography law struck down two years ago by the US Supreme Court, and in doing so, has subpoenaed search records from Google.^[1] The subpoena was issued last year for the records of 1 million random internet URLs and records of all Google searches from any one-week period.^[2] Google has so far refused to comply.^[3] According to the government, other search engines have “agreed to release the information” but it won’t specify which ones.^[4]

Google opposes the release of the information because, as Google’s associate general counsel Nicole Wong says, “Google is not a party to this lawsuit, and the demand for the information is overreaching.”^[5]

Criminal subpoenas are conducted under Rule 17 of the Federal Rules of Criminal Procedure. Rule 17(c) states that a subpoena “may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.” However, the subpoena may be quashed upon motion, if compliance would be unreasonable or oppressive. (Civil subpoenas are conducted under Rule 45 of the Federal Rules of Civil Procedure.)

The information is sought in connection with the government’s attempt to rehabilitate the Child Online Protection Act [hereinafter COPA],^[6] which was struck down in 2004 as too broad, and too restrictive on adults.^[7] However, the Court invited the government to either come up with a less drastic version of the law, “or go to trial to prove that the statute does not violate the First Amendment and is the only viable way to combat child porn.”^[8]

The case, Ashcroft v. ACLU,^[9] looked at whether the Federal District Court erred in imposing a preliminary injunction against the enforcement of COPA.^[10] “COPA is the second attempt by Congress to make the internet safe for minors by criminalizing certain Internet speech. The first attempt was the Communications Decency Act of 1996 [hereinafter CDA].^[11] … The Court held the CDA unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available.”^[12] Responding to the defeat of the CDA, “Congress passed COPA [which] imposes criminal penalties of a $50,000 fine and six months in prison for the knowing posting, for ‘commercial purposes’ of World Wide Web content that is ‘harmful to minors.’^[13] The Court notes that COPA criminalizes “all speech that falls with [its] definitions,” though it does provide some affirmative defenses by demonstrating that access is restricted by age-verification technology.^[14] However, the Court determined that less-restrictive alternatives are available, such as filtering software, leaving open the possibility of a trial on the merits,^[15] which is what the government has opted to do. As of September 3, 2004, the case has been restored on the Eastern District Court of Pennsylvania’s active docket. Its civil docket number is 2:98-cv-05591-LR, and it can be found through PACER.

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[1] Howard Mintz, Feds After Google Data, The Mercury News, Jan. 19, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] 47 U.S.C. § 231.
[7] Mintz, supra note 1.
[8] Id.
[9] 542 U.S. 656 (2004).
[10] Id. at 659.
[11] Pub. L. 104-104, § 502, 110 Stat. 133, codified at 47 U.S.C. § 223 (1994).
[12] 542 U.S. at 661.
[13] Id. at 661-63.
[14] Id. at 662.
[15] Id. at 673.