Question for a lawyer: How does it happen that the Justice Department can subpoena web search records from Google, Yahoo, AOL, and MSN, when the request is not pursuant to a criminal investigation, and the companies are not themselves a party to the suit?
Note that the legal case in question is an ACLU challenge to the constitutionality of a federal law (the "Child Online Protection Act", a law to regulate pornography on the Internet). Could Attorney General Gonzalez subpoena my own personal web cache in order to defend his favorite anti-pornography legislation, too? (Just asking.)
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I think what is egregious about this incursion by Gonzales is not so much how he might figure out that I've been searching for goatse.cx every day for the past 8 months -- although the inexorable creep of his demands over my private information already violates our constitutional agreement -- but that he is essentially confiscating property which is not the government's to confiscate.
To confiscate such, there's a due process right; usually during that process, government must tell the court why its right over said property is greater than that of the owner. The fact that the government would find this property very useful isn't sufficient -- I'm sure that the government would find it useful to confiscate $1000 per person, too, but they don't get to do it without just and sufficient cause. The fact that their taking posession of it doesn't diminish my ability to enjoy it isn't sufficient either -- my aggregated search information might be useful to me, and if Gonzales took a copy I could still use it, but the same is true of all intellectual property, and "law enforcement purposes" is not a "fair use" exception to violating intellectual property rights.
What Gonzalez is saying to Google, here, is "we want that property." The firm legal ground that Google has to stand on -- and which Yahoo and MSN already ceded, thank god I don't use those lame search engines - is "This is property, you can't just take it because you want it, even if it's handy for law enforcement." They can say this without even addressing exactly whose property it is (search information? might be mine, might be Googles).
Furthermore, I'm convinced that if DOJ followed a link to goatse.cx, they'd stop being so damned inquisitive.
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