Wednesday, August 9, 2006 - The Progress & Freedom Foundation Blog

AOL, Search Records and Privacy

I've been reluctant to wade into the blog debate about AOL's released search records -- which may not have been as anonymized as they might have liked -- because I'm not familiar with the particulars. (I'm sure most of the other bloggers aren't either, but the journalist in me still likes to know the facts first before writing.) But Greg Piper in today's Washington Internet Daily has a well-researched piece on the possible legal ramifications of AOL's actions. I can't speak to the legal issues at hand here but I did share some broader thoughts with Greg on another question he asked, whether this "breach" gives ammunition to the Department of Justice in its efforts to obtain search records. After quoting several experts noting that this was being treated by AOL as a breach and thus not likely to bolster DoJ's efforts to get records for its defense of the Child Online Protection Act, Greg wrote this:

But Progress & Freedom Foundation Senior Fellow Patrick Ross told us AOL has given DoJ "some pretty serious ammunition" not only to force search engine compliance in the case, but also to press Congress for lengthy data retention mandates. "When one of the search entries is 'how to kill your wife,' I think all of us instinctively want authorities to find out who that person is," although the phrase might indicate research for a novel -- the situation with Ross's mother, a novelist, he said.

First, I covered COPA through the courts, and I believe the Administration should just leave it where it is and not try to revive it. I also understand why Google chose to resist surrendering search records, even anonymized ones, for that COPA effort. My point to Greg, however, was that this struggle isn't just one of laws and courts, it's one of public opinion. When I saw the "how to kill your wife" query, I gulped. There have been precedents of searches helping to convict criminals. As Declan McCullagh pointed out on CNET today:

A North Carolina man was found guilty of murder in November in part because he Googled the words "neck," "snap," "break" and "hold" before his wife was killed. But those search terms were found on Robert Petrick's computer, not obtained from Google directly.

Hard to argue with the police there. But should law enforcement be able to sweep up a bunch of random search engine queries and then go fishing for crimes?

As I told Greg, I think of my mother in this example. JoAnn Ross is the author of 95 (!) novels, the most recent of which have been suspense novels. If Alberto Gonzales were to look at her Google searches, or her purchases for that matter, they'd assume she had obsessions with: (1) Serial killers. (2) Arson. (3) Sniper rifles. Some of you may have heard of Paladin Press, the publisher famous for books such as how to make a bomb. Well, somewhere in my basement I have a book my mom handed down to me that's published by Writer's Digest Books, and it educates aspiring fiction writers on every type of poison. Does that mean I'm planning to poison Alexandria's water supply, like Luther Driggers?

Research could be the last refuge of a scoundrel. But we are innocent until proven guilty in this country. If there is reason to suspect criminal behavior and a search engine list is helpful, law enforcement already has means to obtain that information. But there is no reason to create needless alarm by having broad volumes of search information handed over, even if it is "anonymized," which we are learning is harder to do than we might think.

DISCLAIMER: I realized after writing this entry that the two journalists I quoted both have the distinction of holding jobs I used to hold. Let the reader be assured I did not single them out for this reason; there are many top-notch journalists on the tech policy scene today, enough that I'm glad I'm no longer competing with them. This was a coincidence, but a happy one.

posted by Patrick Ross @ 4:55 PM | Free Speech , Privacy