What146;s privacy got to do with Google146;s secrets?

The Justice Department went to court last week to try to force Google, by far the world8217;s largest Internet search engine, to turn over ...

The Justice Department went to court last week to try to force Google, by far the world8217;s largest Internet search engine, to turn over an entire week8217;s worth of searches. The move, which Google is fighting, has alarmed its users, enraged privacy advocates, changed some people8217;s Internet search habits and set off a debate about how much privacy one can expect on the Web.

But the case itself, according to people involved in it and scholars who are following it, has almost nothing to do with privacy. It will turn, instead, on serious but relatively routine questions about trade secrets and civil procedure.

The privacy debate prompted by the case may thus be an instance of the right answer to the wrong question. As recently demonstrated by disclosures of surveillance by the National Security Agency and secret inquiries under the USA Patriot Act, the government is aggressively collecting information to combat terror. And even in ordinary criminal prosecutions and in civil lawsuits, Internet companies including Google routinely turn over authentically private information in response to focused warrants and subpoenas from prosecutors and litigants.

But 8216;8216;This particular subpoena does not raise serious privacy issues,8217;8217; said Timothy Wu, a law professor at Columbia. 8216;8216;These records are completely disconnected. They8217;re just strings of words8217;8217;.

In its only extended discussion of its reasons for fighting the subpoena, a Google lawyer told the Justice Department in October that complying would be bad for business. 8216;8216;Google objects,8217;8217; the lawyer, Ashok Ramani, wrote, 8216;8216;Because to comply with the request could endanger its crown-jewel trade secrets8217;8217;. Ramani8217;s five-page letter mentioned privacy only once, at the bottom of the fourth page, and then primarily in the context of perception rather than reality.

8216;8216;Google8217;s acceding to the request would suggest that it is willing to reveal information about those who use its services,8217;8217; he wrote. 8216;8216;This is not a perception that Google can accept8217;8217;. Even Google8217;s allies are shying away from legal arguments based on privacy. The American Civil Liberties Union, for instance, said it planned to file papers supporting Google. But not on privacy grounds. 8216;8216;We will probably not be making that argument,8217;8217; said Aden J. Fine, a lawyer with the civil liberties union.

The issues raised by the new subpoena, while substantial, are fairly technical, according to Professor Wu. 8216;8216;The legal point here is what is the relevancy standard for subpoenas?8217;8217; he said. 8216;8216;That is interesting to procedure scholars but to no one else8217;8217;.

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Other Internet search engine companies, including Yahoo, America Online and MSN, have complied with the same Justice Department subpoena, which also sought a random sample of a million Web addresses. The companies all said there were no privacy issues involved. A Justice Department spokesman, Brian Roehrkasse, agreed. 8220;We specifically stated in our requests,8221; he said, 8220;that we did not want the names, or any other information, regarding the users of Google.8221; None of this is to say that subpoenas for search records linked to individuals are inconceivable. Google maintains information that could be used that way, and a subpoena could ask for it. But the recent subpoena does not.

The problem with the subpoena, Mr. Fine said, is more general. 8220;This is another instance of government overreaching,8221; he said. The government says it needs Google8217;s information to defend a challenge from the civil liberties union to a 1998 law, the Child Online Protection Act, which makes it a crime to make 8220;Material that is harmful to minors8221; commercially available on the Web. NYT