DOJ porn over-stepping: Stop it now

[The following lede paragraph is altered to reflect the fact that several justifications for the subpoenaed information discussed in the story have been floated. Nonetheless, the basic principles involved are identical.]

Claiming to be conduction research about how kids find pornography on the Web and, in some comments to the press, raising the issue of kiddie porn, People who like child porn are sick, but they have rights. More importantly, we all do. Tthe Bush Administration, which has subpoenaed the results of randomly selected searches by users of Yahoo!, MSN and Google. People who like child porn are sick, but they have rights. More importantly, we all do. The Department of Justice is using people’s general distaste for the idea kids will get their hands on porn and for kiddie-porn lovers to convince them the rights of all Internet users should be abridged. That’s wrong.

That Google is standing up to the Department of Justice is admirable. That Yahoo! and MSN apparently handed over the records of millionsIt’s another fight we need to undertake to save American liberties, but if we don't include the rights of everyone on the planet, the promise of the Internet is at risk. of searches selected at random is more than disappointing, it is dangerous to the companies, which will lose their customers’ trust, and to all our rights as users. For the rights of Americans isn’t the only thing on the line.

Yahoo!, MSN and Google have all given in to bullying tactics by foreign governments, particularly in China. It’s too big a market to offend officials who can cut off access.

When we congratulate Google on standing up to this subpoena, we should remember that they haven’t lived up to the promise that John Battelle wrote the company kept today:

As we move our data to the servers at Amazon.com, Hotmail.com, Yahoo.com, and Gmail.com, we are making an implicit bargain, one that the public at large is either entirely content with, or, more likely,  one that most have not taken much to heart.

That bargain is this: we trust you to not do evil things with our information. We trust that you will keep it secure, free from unlawful government or private search and seizure, and under our control  at all times.

There are no special circumstances in that promise. It doesn’t apply just to Americans, though Google has treated it as though it did when cooperating with the Chinese government to censor information displayed in the country.

But, to the issue at hand, which brings us back to why companies should be offering the highest level of security to users. If we want to spread freedom in the world, the place to start is here in the United States, because there are no comparable guarantees of rights to draw on. It’s a promise Google and its competitors should keep everywhere, not just when the Bush Administration steps over the line.And there is a line. The Fourth Amendment is clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What we’re going to hear from the DOJ is that in the Internet age it is just too hard to keep the Founders’ promise. It’s an old refrain, one we’ve heard from every administration since electronic communications appeared on the historical scene.

It’s what we hear today from the Bush Administration to justify warrantless monitoring of telecommunications by the National Security Agency (NSA) in violation of the Foreign Intelligence Surveillance Act, the law passed to rein the agency in after President Nixon abused electronic eavesdropping, as well as the founding charter of the NSA. (See NSA expert James Bamford's explanation why he is joining a suit to stop the current wiretapping of Americans.)

It's also likely that the DOJ will focus on the "random" selection of search results in its public response to criticism of the child porn subpoenas. The obvious metaphor that comes to mind is the use of arbitrary traffic stops to check for drunk drivers.

The Supreme Court has ruled that the police can search vehicles with lower level of protection in the form of prior review by a judge. In Arkansas v. Sanders, a 1979 case, the Court introduced the idea that "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view." This was used to justify random traffic stops to check for drunk drivers until the Court ruled that the police have to have probable cause for a "random" stop.

The police solution then was to stop everyone passing a particular point on the road. If Justice can argue that the Internet is a public place to some degree, then there is a potential blanket excuse to monitor the Net. Of course, reading on the Internet is not a public act. But, you will hear some variation on this argument.

Don't be fooled. J. Edgar Hoover used to argue that making phone calls put criminals out of the reach of law enforcement; Hoover also defined anyone who disagreed with him as a criminal and collected dossiers on thousands of innocent people. The Court saw through Hoover's complaints that technology made his job too difficult, as it would any argument for these subpoenas that cover search results gathered with no viable probable cause. A justice that supports the view that this is a proper exercise of police power should be impeached.

It's another fight we need to undertake to save the American liberties that make this country a beacon of hope and freedom. If we don't include the rights of everyone on the planet, though, the promise of the Internet is at risk.