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Gonzales v. Google, Inc.

18jan2006

PETER D. KEISLER
Assistant Attorney General
THEODORE HIRT
Assistant Branch Director
JOEL McELVAIN, D.C. Bar No. 448431 
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch 
20 Massachusetts Ave., NW
Washington, DC 20001
Telephone: 202) 514-2988
Fax:     (202) 616-8202
Email:   Joel.L.McElvain@usdoj.gov
Attorneys for Alberto R. Gonzales
             IN THE UNITED STATES DISTRICT COURT 
           FOR THE NORTHERN DISTRICT OF CALIFORNIA 
                     (SAN JOSE DIVISION)
ALBERTO R. GONZALES, in his official )
capacity as ATTORNEY GENERAL OF THE
UNITED STATES,
                                  Case No.    -MISC 
             Movant,              Notice of Motion, and Motion to
                 v.               Compel Compliance with 
                                  Subpoena Duces Tecum
GOOGLE INC.,
                                  Hearing: To Be Set
             Respondent.          Time:    To Be Set

     NOTICE is hereby given of the filing of this motion pursuant to Rule 45(c)(2)(B) 
of the Federal Rules of Civil Procedure by Alberto R. Gonzales, acting in his official 
Respondent, Google Inc. ("Google"), to comply with the subpoena that the Attorney 
capacity as the Attorney General of the United States. This motion seeks compel the 
General has issued to it, and to produce and permit for inspection and copying the 
materials specified in that subpoena. Pursuant to Local Civil Rule 37-1(a), the 
undersigned counsel for the Attorney General represents that he has attempted to confer 
with counsel for Google with respect to this motion, but that, after conferring, Google has
chosen to refuse to comply with the subpoena. In support of this motion, the Attorney
                                                 Motion to Compel
Gonzales, Google Inc. No. -MISC 

General is also filing the Declaration of Joel McElvain, with exhibits attached, and the  
Declaration of Philip B. Stark, Ph.D.

This motion seeks an order from this Court directing Google to comply with the  
subpoena, and to produce the materials described therein. As will be explained in greatcr  
detail below, those materials would be of assistance to the government in its preparation  
of its defense in the ease ACLU, et al. v. Gonzales, Civil Action No 98-CV-5591 (E.D.  
Pa.).

BACKGROUND

In 1998, Congress enacted, and the President signed into law, the Child Online  
Protection Act (COPA), which is now codified as 47 U.S.C.  231. Congress was  
concerned with protecting the physical and psychological well-being of minors from the  
harmful effects of their exposure to sexually explicit material on the Internet. In  
furtherance of this important goal, COPA prohibits the knowing making of a  
communication, by means of the World Wide Web, "for commercial purposes that is  
available to any minor and that includes material that is harmful to minors," subject to  
certain affirmative defenses. 47 U.S.C.  231(a)(1). For this purpose, the statute defines  
the phrase "material that is harmful to minors" as a term of art to mean material either that  
is obscene or that "(A) the average person, applying contemporary community standards,  
would find, taking the material as a whole and with respect to minors, is designed to  
appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or  
represents, in a manner patently offensive with respect to minors, an actual or simulated  
sexual act or sexual conduct, an actual or simulated normal or perverted sexual act, or a  
lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole,  
lacks serious literary, artistie, political, or scientific value for minors." 47 U.S.C.  
 231(e)(6).

Upon the enactment of COPA, the American Civil Liberties Union and several  
other plaintiffs filed an action in the United States District Court for the Eastern District

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of Pennsylvania, seeking a declaration that COPA violates the First Amendment, and also  
seeking corresponding injunctive relief. The district court (the Hon. Lowell A. Reed, Jr.)  
granted the plaintiffs' motion for a preliminary injunction. ACLU v. Reno, 31 F. Supp. 2d  
473 (E.D. Pa. 1998). The United States Court of Appeals for the Third Circuit affirmed
the grant of the preliminary injunction. ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000).  
After granting certiorari, the Supreme Court of the United States vacated the judgment of  
the court of appeals, and remanded the case to that court for further consideration.  
Ashcroft v. ACLU, 535 U.S. 564 (2002). After the court of appeals again affirmed the  
grant of the preliminary injunction, ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003), the  
Supreme Court again granted certiorari.

A five-member majority of the Court affirmed the judgment of the court of  
appeals, and thus affirmed the grant of the preliminary injunction. Ashcroft v. ACLU, 124  
S. Ct. 2783 (2004). The Court noted that, given Congress's careful regard when it  
enacted COPA for the proper standard of regulation of harmful-to-minors materials, "the  
Judiciary must proceed with caution and . . . with care before invalidating the Act." Id. at  
2788 (internal quotation omitted; ellipses in original). The Court concluded, however,  
that the district court had not abused its discretion in entering the preliminary injunction.  
It held that there was an insufficient record, at that stage in the proceedings, by which the  
Government could carry its burden of proof that existing technologies, namely filtering  
software, are less effective than the statutory restrictions in protecting minors from  
harmful, sexually explicit material. Id. at 2793. Because "there are substantial factual  
disputes remaining the case," the Court remanded the matter for trial on the merits. Id. at  
2794.

As directed by the Supreme Court, the Government is now developing its defense  
of the constitutionality of COPA, and, specifically, its development of a factual record in  
support of its contention that COPA is more effective than filtering software in protecting  
minors from exposure to harmful materials on the Internet. As part of its development of

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this defense, the Government has issued subpoenas to Google, and to other entities that 
operate search engines on the Internet, asking those entities to produce two sets of 
materials. (McElvain Decl., Ex. A ("Subpoena")) First, the subpoena asks Google to 
produce an electronic file containing "[all! URL's that are available to be located 
through a query on your company' search engine as of July 31, 2005." (Subpoena, Request No. 
a query on your company' search engine as of July 31, 2005." (Subpoena, Request No. 
1.) After lengthy negotiations, the Government has narrowed this request to seek the 
production of "a multi-stage random sample of one million URL's" from Google's 
database, i.e., a random selection of the various databases in which those URL's are 
stored, and a random sample of the URL's held within those selected databases. 
(McElvain Decl., Ex. C ("DOJ Letter") at 1.) Second, the subpoena also asks Google to 
produce an electronic file containing "[sill queries that have been entered on your 
company' search engine between June 1, 2005, and July 31, 2005, inclusive." (Subpoena, 
Request No. 2.) Again, after lengthy negotiations, the Government has narrowed this 
request to seek the production of an electronic file containing "the text of each search 
string entered onto Google's search engine over a one-week period (absent any 
information identifying the person who entered such query)." (DOJ Letter at 1.) Despite 
these narrowing constructions, Google has refused to comply with these requests in any 
way. (McElvain Decl., Ex. B ("Ramani Letter"))

    The production of those materials would be of significant assistance to the 
Government's preparation of its defense of the constitutionality of this important statute. 
The production of a set of queries entered onto Google's search engine would assist the 
The production of a set of queries entered onto Google's search engine would assist the 
Government in its efforts to understand the behavior of current web users, to estimate 
how often web users eneounter harmful-to-minors material in the course of their searches, 
and to measure the effectiveness of filtering software in screening that material. (Stark 
Decl.,  4.) Similarly, the production of a sample of the URL's that are available to be 
recovered from a search of Google's search engine would assist the Government in its 
efforts to understand the web sites that users of search engines can find through the use of

                      -4-

search engines, to determine the character of those web sites, to estimate the prevalance 
search engines, to determine the character of those web sites, to estimate the prevalance 
of harmful-to-minors material on those web sites, and to measure the effectiveness of 
of harmful-to-minors material on those web sites, and to measure the effectiveness of 
filtering software in screening that harmful-to-minors material. (Stark Decl.,  3.)
filtering software in screening that harmful-to-minors material. (Stark Decl.,  3.)

                   DISCUSSION

    The Supreme Court has mandated, in the remand of Aschroft v. ACLU to the 
district court, that the parties develop a faetual record regarding the relative effectiveness                                                                                              of COPA and of filtering software in restricting the access of minors to harmful-to-minors 
of COPA and of filtering software in restricting the access of minors to harmful-to-minors 
material on the Internet. The production of the materials sought in the Government's 
subpoena to Google would be of assistance to the Government in its efforts to comply 
with this mandate. Google, nonetheless, has refused to comply in any way with the 
subpoena. It has asserted objections of relevance, of privilege, and of burden to both of 
the requests in the subpoena. None of its objections, however, suffices to excuse Google 
from its discovery obligations.

I.  Google Is Obligated under the Subpoena to Produce a Set of Queries 
    Entered on to Its Search Engine

    The subpoena requires Google to produce an electronic file containing "[a]ll 
queries that have been entered on your company's search engine between June l, 2005, 
and July 31, 2005, inclusive." (Subpoena, Request No. 2.) The Government has 
narrowed that request to seek the production of an electronic file containing "the text of 
each search string entered onto Google's search engine over a one-week period (absent 
Google first objects to this request on grounds of relevancy. (Ramani Letter at 4.)
any information identifying the person who entered such query)." (DOJ Letter at 1.)
However, "[t]he non-party witness is subject to the same scope of discovery under [Rule 
45] as that person would be as a party to whom a request is addressed pursuant to Rule 
34." Fed. R. Civ. P. 45, advisory committee's notes to 1991 amendment. Thus, a request 
for production submitted to a non-party meets the standard of relevance so long as it is 
reasonably calculated to lead to the discovery of admissible evidence. See United States
ex rel. Schwartz v. TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal. 2002). This request easily 
meets that standard. As discussed above, the production of this sample would permit the 
Government to evaluate whether COPA or filtering software is more effective in 
restricting access to harmful-to-minors materials in response to searches as they are 
actually performcd by present-day users of the Internet. (Stark Decl., 4.)

    Google next objects that its compliance with the request would require it to 
produce information identifying the users of its search engines. (Ramani Letter at 4.) 
This concern is illusory. The subpoena specifically directs Google to produce only the 
text of the random sample of seareh strings, without any additional information that 
would identify the person who entered any individual search string. (Subpoena, Request 
No. 2.) The Government has issued subpoenas to, and has received eompliance from, 
other entities who operate search engines, and each of those entities has produced 
electronic files to the Government that contain the texts of the search strings, but that do 
not contain any additional personal identifying information. (Stark Decl.,  9.) Google 
thus should have no difficulty in complying in the same way as its competitors have.

    Google also contends that the material sought in this request is redundant, given 
the fact that the Government has issued similar subpoenas to other search engine 
Government's request. The production of a set of queries from Google's database, in 
operators. (Ramani Letter at 5.) This objection misunderstands the nature of the 
eombination with similar productions from other search engine operators, will assist the 
Government in developing a sample of the overall universe of search engine queries, 
while accounting for the potential of any variations in the types of queries that are entered 
into different search engines. (Stark Decl., 5-6.) Because Google has the largest share 
of the web search market, its response to the subpoena would be of value to the 
Government in its development of its overall sample of queries. (Stark Deel.,  5-7.)
    Google next argues that the subpoena asks it to produce privileged trade secrets. 
(Ramani Letter at 5.) We do not understand Google to claim that the aetual texts of a

                      -6-

random sample of the searches entered on its search engine are trade secrets (nor would 
such a claim be plausible). Instead, Google asserts that the total number of queries that it 
receives within a given day is itself a trade secret. It identifies no reason to conclude that 
it would suffer any competitive harm from the disclosure of this figure, however. In any 
event, to the extent that such a figure would constitute a trade secret, the district court 
overseeing the underlying litigation has entered a comprehensive protective order that 
protects such privileged material from disclosure. (McElvain Decl., Ex. D ("Protective 
Order")) Google does not argue that this protective order is inadequate in any way, but 
argues instead only that the Government might inadvertently fail to comply with that 
order. This argument does not excuse Google from complying with the subpoena, subject 
to the proteetions it has already received through the entry of the protective order. See, 
e.g.. Truswal Sys. Corp. v. Hydro-Air Eng'g, Inc., 813 F.2d 1207, 1211 (Fed. Cir. 1987) 
(court will not presume that terms of protective order will be violated).
    Lastly with respect to the request for the production of queries, Google contends 
that it will be subject to an undue burden in complying with this request. (Ramani Letter 
at 5.) To the contrary, any burden that Google will face will be minimal. The request 
seeks only the production of the queries that were entered on to Google's search engine 
over a seven-day period in an electronic text file. The process of producing this text file 
is not complicated; other operators of search engines have complied with this request, and 
have not reported that they encountercd any difficulty or burden in doing so. (Stark Decl., 
 8.) Moreover, the Governmcnt is willing to work with Google to specify a multi-stage 
sample of the queries; the use of that approach would reduce any burden faced by Google 
well below that of its competitors. (Stark Decl., 8.) (Of course, the Government is 
willing to compensate Google for its reasonable expenses in complying with both 
requests in this subpoena.) The minimal burden that Google faees in complying with this 
request must be balanced against the clear relevance of the material to the Government's 
preparation of its defense of the constitutionality of COPA. See Compaq Computer Corp.

                       7-

v. Packard Bell Electronics, Inc., 163 F.R.D. 329, 335 (N.D. Cal. 1995). Given the 
Supreme Court's explicit mandate for the development of a factual record regarding the 
relative effectiveness of COPA and filtering software, the relevance of this request easily 
outweighs the small burden faced by Google.

II. Google Is Obligated under the Subpoena to Produce a Sample of 
    URL's Available to be Retrieved from Its Search Engine
    The subpoena further requires Google to produce an electronic file containing 
"[a]ll URL's that are available to be located through a query on your company' search 
engine as of July 31, 2005." (Subpoena, Request No. 1.) The Government has also 
narrowed this request to seek the production of "a multi-stage random sample of one 
million URL's" from Google's database, i.e., a random selection of the various databases 
in which those URL's are stored, and a random sample of the URL's held within those 
selected databases. (DOJ Letter at 1.) As with the first request, Google objects to this 
request on relevance grounds. (Ramani Letter at 3.) This request, however, easily meets 
the minimal standard of relevance under Rules 26 and 45. The production of these 
materials will permit the Government to review a sample set of Internet addresses 
available to be retrieved from the search engines operated by Google and by other 
entities. From that set, the Government will be able to review thc sample to draw 
conclusions as to the prevalence of harmful-to-minors material on the portion of the 
Internet that is retrievable through search engines. (Stark Decl.,  3.) Thus, the 
request is plainly reasonably caleulated to lead to the discovery of admissible evidence.
plainly reasonably caleulated to lead to the discovery of admissible evidence.

    Google also objects that its compliance with this request would imply that its 
search-engine database is reflective of the entire world-wide web. (Ramani Letter at 3.) 
The Government is unaware of any privilege or burden claim to which this objection 
could possibly relate. In any event, there is no basis for this objection. The subpoena 
seeks the production of a sample of URL's available on Google's search engine, not to 
draw conclusions or to make representations as to the entire nature of the Internet, but

                      -8

instead to evaluate the portion of the Internet that is searehable through the search engines  
operated by Google and by other entities. (Stark Decl.,  10.)

Next, Google asserts that the Government could obtain this sample set of URL's  
from other sources. (Ramani Letter at 3.) As Google itself acknowledges, however, the  
Government has attempted to gather similar data from other sources, but has found those  
sources to be incomplete. (Id.) In any event, as a matter of simple logic, given the  
Government's stated purpose of evaluating a sample set of URL's available to be  
retrieved from searches on the various search engines presently available, the most readily  
available source for those materials are the operators of search engines themselves.  
(Stark Decl.,  5.)

Google also objects, as it did with the request discussed above, that this request  
seeks redundant information, given the fact that the Government has issued similar  
subpoenas to other search engine operators. (Ramani Letter at 4.) As discussed above,  
this objection misunderstands the purpose of the request. The production of a sample set  
of URL's from more than one search engine operator will permit the Government to draw  
conclusions regarding the total universe of URL's available to be retrieved through the  
use of a seareh engine, and to verify those conclusions against possible variations in the  
scope of URL's available in the databases of differing search engines. (Stark Decl.,  
 5-6.) This request thus is in no sense redundant.

Google further asserts that it would be unduly burdened if required to respond to  
this request. (Ramani Letter at 4.) To the contrary, the process of selecting a random  
sample among the various sources in which Google maintains its database of URL's,  
selecting a random sample of URL's from those sources, and producing a text file of the  
results, is straight-forward; other search engine operators have complied with this request,  
as they have with the request for queries discussed above, and they have not reported any  
difficulty in performing this task. (Stark Decl.,  8.) Again, the specification of a multi- 
stage sample to be used in drawing the URL's from Google's database would reduce any

-9

burden faced by Google below that faced by the other search engine operators. (Stark  
Decl.,  8.) Google should not be excused from the same, reasonable discovery  
obligations as those of its competitors.

Finally, Google contends that this request, like the request above, would require it  
to disclose its trade secrets, namely, the number of URL's in its database and the number  
of servers it uses to maintain that database. (Ramani Letter at 4.) (Google, rightly, does  
not contend that the actual resulting random sample of URL's that it would produce could  
in any sense be eonsidered to be a trade secret.) Again, Google identifies no defect in the  
protective order that has been entered in this litigation, and it may not rely purely on  
speculation that the order might be violated to justify its refusal to comply with the  
subpoena. In any event, Google fails to identify any competitive harm that could befall it  
if it were to disclose these facts to the Government for the expressly limited purpose of  
the drawing of a random sample of URL's from the Google database.

Given the explicit mandate from the Supreme Court for the development of a  
factual record regarding the effectiveness of COPA and of filtering software, and given  
the demonstrated usefulness that the subpoenaed materials would have for the  
Government in its development of that record, the Government has demonstrated its  
entitlement to Google's compliance with the subpoena. This Court should require Google  
to comply with the subpoena on the same terms that its competitors have.

- 10 -

                    CONCLUSION

   For the foregoing reasons, the Movant, Alberto R. Gonzales, in his official 
capacity as Attorney General of the United States, respectfully requests that this motion 
be granted and that the Respondent, Google, Inc., be compelled to comply with the 
subpoena issued to it. A proposed order is attached for the Court's convenience. 

Dated: January 18, 2006 Respectfully submitted,
                        PETER D. KEISLER 
                        Assistant Attorney General
                        THEODORE HIRT 
                        Assistant Branch Director
                        JOEL McELVAIN
                        Trial Attorney
                        United States Department of Justice 
                        Civil Division, Federal Programs Branch 
                        20 Massachusetts Ave., N-W, Room 7130 
                        Washington, D.C. 20001
                        Telephone: (202) 514-2988
                        Fax:    (202)616-8202
                        Email:  Joel.L.McElvain@usdoj.gov
                        Attorneys for the Movant, Alberto R. Gonzales


           IN THE UNITED STATES DISTRICT COURT 
         FOR THE NORTHERN DISTRICT OF CALIFORNIA 
                (SAN JOSE DIVISION)
ALBERTO R. GONZALES, in his official ) 
capacity as ATTORNEY GENERAL OF THE ) 
UNITED STATES,             Case No. -MISC
           Movant,
                           [Proposed] Order
              v. 

GOOGLE INC.,
           Respondent.

    THIS MATTER having come before the Court on the Motion to Compel 
Compliance with Subpoena Duces Tecum filed by Alberto R. Gonzales, in his official 
capacity as Attorney General of the United States, and good cause having been shown, it 
is hereby

    ORDERED that the Motion is GRANTED; and it is further

    ORDERED that the Respondent, Google Inc., is compelled to comply with the 
subpoena issued to it by the Movant within 21 days of the date of this Order. 

    IT IS SO ORDERED.

Dated:

                     JUDGE OF THE DISTRICT COURT
                     CERTIFICATE OF SERVICE

   I hereby certify that I have made service of the foregoing Notice of Motion, and 
Motion to Compel Compliance with Subpoena, and of a Proposed Order, by depositing in 
Federal Express at Washington, D.C., on January 18, 2006, true, exact copies thereof; 
enclosed in an envelope with postage thereon prepaid, addressed to:

          Ashok Ramani, Esquire
          Google Inc.
          1600 Amphitheatre Parkway
          Building # 47
          Mountain View, California 94043 
          (Counsel for Respondent Google Inc.)

          Aden J. Fine, Esquire
          American Civil Liberties Union Foundation
          New York, New York 10004
          (Counsel for Plaintiffs, ACLU v. Gonzales, E.D. Pa. No. 98-cv-5591)
          125 Broad Street

                    Attorney

 

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