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Court’s Analysis of Google’s Arguments

On the issue of relevance, the court observed that the government had failed to provide even a “rudimentary level of general detail as to what it intends to do with the sample of URLs.” After “envisioning” and “imagining” how the government might be able to use the information to measure the effectiveness of filtering software, it gave the government “the benefit of the doubt” and held that the government sought relevant information.

Regarding the government’s demand for search query information, the court found that the government sought information relevant “to the creation of a test set on which to test the effectiveness of search filters in general."

Next, the court turned to Google’s arguments on burden. The court was unpersuaded by most of them. The government’s offer to compensate Google for the costs it would incur in complying with the subpoena dispensed with the cost issue. As to Google’s technological burden argument, the court held that the effect on Google’s search engine of the government’s searches is likely to be de minimus.

Regarding Google’s concerns about loss of user trust, the court found that some Google users might expect some degree of privacy in their searches. Although Google’s privacy policy clearly states it does not apply to such information, the court concluded that Google might lose the goodwill of users who unreasonably expect some sort of privacy in their searches. As a result, the court agreed that that loss of goodwill could be a burden on Google.

On the trade secret issue, the court noted that Google had conceded that production of the small data samples sought by the government was unlikely to compromise Google’s trade secrets per se. The court nevertheless expressed concern “that a narrow sample of Google’s proprietary index and query log, while in itself not likely to lead to the disclosure of confidential information, may act as the thin blade of the wedge in exposing Google to potential disclosure of its confidential commercial information.” This finding thus shifted the burden to the government to demonstrate that the “requested discovery is relevant and essential to a judicial determination of its case.”

Read Part III of this post here.