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3/29/2006
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Justice Department Subpoenas Reach Far Beyond Google

In its effort to uphold the Child Online Protection Act, the U.S. Department of Justice is leaving no stone unturned. In addition to America Online, MSN, and Google, the government has demanded information from at least 34 Internet service providers, search companies, and security software firms, InformationWeek learned through a Freedom of Information Act request.

"What they are doing, from our perspective, is engaging in a massive fishing expedition in an attempt to find some shred of evidence that they think can change a result they didn't like, which is that COPA violates the First Amendment," says Aden Fine, an attorney for the ACLU.

While the government's demands for information from Internet search engines have privacy implications for individuals, its interest in corporate information raises questions about the rights of businesses.

Stephen Ryan, a partner at Manatt, Phelps & Phillips in Washington D.C., considers the scope of the government's discovery efforts unusual. "I'm not surprised that the Google piece looks like the tip of an iceberg," he says. "But it is sort of surprising that they're using their authority this broadly."

Ryan acknowledges that government subpoenas place undue burdens on companies every day, noting that there are probably scores of attorneys at large ISPs who do nothing but process subpoenas. He suggests that as information technology produces more information, the government will want greater access to that data.

With regard to the financial impact of subpoenas, Ryan notes, "If you look at the Office of Regulatory Affairs at Office of Management and Budget, there's something called the Paperwork Reduction Act. And there's supposed to be an evaluation of the burden that a government law or regulation will make on the public. I'll bet there's never been a burden analysis of what they're doing."

Justice Department spokesman Miller said he would inquire about this, but didn't have an immediate answer.

Dan Jude, however, did. Jude, president of filtering software company Security Software Systems, confirms that the subpoena his 12-person company received was a burden. "It was a pain," he says. "I don't have exact figures, but it took 40-plus hours to put stuff together."

Jude says the Department of Justice asked for proprietary information about his company's content filtering software. Despite assurances that the information would remain confidential, he says he refused that particular demand, fearing it might be revealed by a Freedom of Information Act request.

Jude contends that the government's efforts to prop up COPA are misguided. "It's a waste of time," he says, noting that he testified before the COPA Commission about the prevalence of explicit material online in August 2000. The problem, he says, is that U.S. legislation has no teeth because half of the Web servers with explicit content are located in other countries.

If COPA were to be reinstated, Jude suggests that the Department of Justice would have to turn ISPs into content police in order to deal with offshore offenders.

As someone who sells a technical solution, it's perhaps no surprise that Jude has faith in filtering. "The great thing about the technology is that it allows parents to make the determination of what they want their kids to be able to do and not to do," he says. "And isn't that what we're supposed to be doing in this country?"

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