Not two days after I observed that the United States gives litigants intrusive discovery and subpoena powers, the Justice Department provides a good example. In pursuit of its case defending the Child Online Protection Act (COPA) in ACLU v. Gonzales that Department has commanded, via a subpoena for production of evidence, various search engines that are not parties to the suit (Google, Yahoo, etc.) to hand over very large samples of URLs available to be searched and search queries from you and me. For example, it commanded Google to hand over all "URL's" available to be searched "as of July 31, 2005" and and all queries performed on their search engines between June 1 and July 31st of 2005.
Fortunately, the subpoenas have not asked for information that might identify the querier (besides the query itself, which identifies all us "ego surfers" who like to keep track of what people are saying about us). Thus, it has not asked for your Internet protocol addresss that search engines could and probably routinely do record, or cookies which also can be used to tie together different searches that you have made.
Perhaps the DoJ is just looking to make a statistical study to justify the law, for example that some fraction of Internet searches are for porn. They may argue that if porn is available to a search engine, then it is effectively available to minors. According to Professor Orin Kerr, the DoJ is arguing that COPA requires password protection for pornography, not just filters: "DOJ's argument is that it needs the information from Google to explain the role of search engines in locating and obtaining pornography, which is then integral to understanding why filters are not an effective alternative to COPA screens [i.e., password protection]." However, unless the data is securely protected by the procedures (archaically designed for paper documents) specified in the protective order, the DoJ could use this data for a wide variety of surveillance unrelated to porn and COPA.
Here's a declaration that includes the subpoena, Google's response, and the protective order. Whereas MSN, AOL, and Yahoo complied with the subpoena (after apparently negotiating to reduce the amount of data), Google has objected to the subpoena. Good for Google! Powers to intrude on new kinds of privately collected data should never be given to a government without challenge, except where absolutely necessary in a truly urgent emergency, which this surely is not. (In other words, if this was September 12 and DoJ was asking airline web sites to hand over search queries for trips by plane to the East Coast the morning of the 11th, I'd expect Google to be patriotic and comply. Short of that kind of very rare and very urgent extremity, I expect and am happy to see them be patriotic and resist). If the Department of Justice wants Google's records, it will now have to ask the court to compel production under Federal Rules of Civil Procedure 45(c)(2)(B).
I hope the federal court allows the ACLU to examine that kind and volume of data in its discovery of the NSA. Much more likely is that the Department of Justice is going to invoke national security to set up a very big double standard when it comes to discovery. The NSA can argue that protective orders designed for paper are woefully inadequate for protecting top secret digital data. Alas, they'd be right, even if it were just commercial trade secret data. Our law firms need and our courts should require 21st century security techniques for protection of discovered or subpoenaed digital evidence. We could, for example, use key splitting techniques and require that discovery be done on tamper-evident court computers with the evidence owner and a court official present. We might also in the future use multiparty secure computation for studies of the kind the DOJ, the ACLU, the FISA court, and so on would like to perform on sensitive digital data.
Given federal discovery rules, PATRIOT, FISA, and the unchecked and infinite power claimed by the executive branch, the sad fact as things stand now is that the feds claim the right to snoop on us almost at will. Indeed, the Justice Department is currently arguing that they have a perfect right to snoop on any aspect of our lives, whether we consider said aspect to be private or not, at will, if at their sole discretion they believe it is relevant to national security. But despite the supposed even-handedness of federal discovery rules, the federal government is going to declare that, when they get sensitive about it, we have very little right to check up on them. Since when do "public servants" get to conduct surveillance on "we the people" and not vice versa?