When the Bush Justice Department subpoenaed data on the Google, Yahoo or MSN web searches you and I and other Americans do, it was presented as part of a Bush administration war on pornography.
On the surface, this invasion of Internet privacy can be seen an effort to boost the DOJ’s effort to revive the so-called Child Online Protection Act (COPA) from the ashes of court injunction.
Looking deeper, this dangerous data mining expedition is tied to the Bush administration’s use of wedge issues to stay in power and erode the constitutional rights of the little people. What’s porn got to do with it?
COPA, passed in 1998, was almost immediately found unconstitutional by a federal district court, in ACLU v. Reno. The court agreed with the ACLU that COPA endangered “constitutionally protected speech about sexually oriented issues including gay and lesbian resources, safer sex, national sex scandals, and fine art.” The court pointed out that if the law were allowed to stand, speakers would “either have to self-censor their communications or face criminal prosecution.” Readers would “either be denied access to such speech entirely, or be required to provide personal identification and payment to obtain speech that they could otherwise retrieve anonymously for free.”
The Supreme Court upheld the injunction in 2004 (Ashcroft v. ACLU). But the high court sent it back to the district court to further review questions like: can filtering and other technology protect minors from Internet porn effectively?
Which brings us to the current case, ACLU v. Gonzales, and Google’s challenge of the government’s subpoena.
COPA claims to protect kids from porn by fining and imprisoning those who make available to minors for commercial purposes any material that is harmful to minors.
But the courts over and over saw that COPA defined the terms “make available,” “harmful to minors” and “for commercial purposes” so broadly that it endangered protected rights of speech, privacy and commerce on the Internet. To block a certain age range means you have to check the age of everyone.
In mounting its defense against the ACLU, the Justice Department hoped to find Internet traffic patterns proving that minors can still get porn despite parental filters, etc., and thus COPA is the only way. To obtain the vast data needed, the DoJ aggressively subpoenaed millions of records of search data kept by the major search engines. Though Yahoo and MSN gave up big chunks of data they say is anonymous, Google vowed to vigorously fight the subpoena in court.
Did the government really need to drag Yahoo, MSN and Google into this case? What message is it trying to send?
Allen Weiner, a technology analyst quoted by the IDG News Service, called it “an odd way for the government to go about collecting such information.” The government could easily have commissioned a study or worked with one of the online tracking companies to give them information to go on, Weiner said.
But using the pornography angle to grab headlines with broad subpoenas of high-profile Internet companies is a way for Attorney General Alberto Gonzales to help Bush reshape his increasingly bad image on domestic spying. Recent revelations of Bush ordering NSA spying on Americans without warrants shook a deep fault line in public opinion, sharply raising the question: how far should the administration be allowed to erode privacy rights in the name of the war on terror?
In his circle-the-wagons visit to the NSA last week, Bush stressed that the spying only targeted “known terrorists” and you have nothing to worry about unless you’re taking collect calls from Osama. But signs abound that the data flow of calls and e-mails captured by the NSA is more torrential than targeted.
New York Times reporters Eric Lichtblau and James Risen revealed in late December that in a highly classified “part of the program approved by President Bush for domestic surveillance without warrants, the NSA has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications.”
That explains how “NSA technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.”
For an administration exposed in such misdeeds, stunts like the Google subpoena would be a valuable decoy. Conjuring above-board fishing expeditions against child pornography would tend to legitimize and/or mask the secret ones.
And even better, such contempt for privacy rights fits the Karl Rove political strategy for the 2006 elections: “We’re the tough guys who protect you; they’re not.”
If Internet search data is surrendered to the government, then the people can be conditioned to volunteer up more and more of their private information and their sovereignty rights. Bush tries to bewilder us with “if you do nothing wrong, don’t worry about broad investigations.” The administration wants to see how much latitude it has. Let’s show them.
Noel Rabinowitz (firstname.lastname@example.org) is communications technology
organizer for the Communist Party USA.