August 18, 2009 | By Cindy Cohn

Warrants Required: EFF and Google's Big Disagreement about Google Book Search

The central question in the privacy debate that EFF and our partners at the ACLU of Northern California and the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley have been having with Google about Google Book Search is whether this exciting new digital library/bookstore is going to maintain the strong protections for reader privacy that traditional libraries and bookstores have fought for and largely won.

That's it. All we want is for Google to promise to fight for the protections you already have when you walk into a bookstore or library.

One of the most important of those protections is the assurance that your browsing and reading habits are safe from fishing expeditions by the government or lawyers in civil cases. In order to maintain freedom of inquiry and thought, the books we search for, browse, and read should simply be unavailable for use against us in a court of law except in the rarest of circumstances. We have other concerns about Google Book Search as well -- concerns and data collection, retention, and reader anonymity -- so this won't end the debate, but safeguards against disclosure are a central point of concern for us.

Bookstores like Tattered Cover in Denver and Kramerbooks in Washington, D.C. stood up against government demands for book records. And thanks to their efforts, as well as others, the government has generally failed to force bookstores to turn over reader information without a court-issued warrant -- or in some cases, even more than a warrant. Similarly, states across the country have passed public library privacy laws that require a court order before reading information is turned over.

Given this backdrop, we asked Google to promise that it would fight for those same standards to be applied to its Google Book Search product. We want Google to promise that it will demand more than a subpoena (which is written by a lawyer and not approved by a judge) or some other legal process that a judge has not approved before turning over your book records. In essence, we asked Google to tell whoever came to them demanding reader information: "Come back with a warrant."

Honestly, we thought it would be an easy thing for Google to do.

Unfortunately, Google has refused. It is insisting on keeping broad discretion to decide when and where it will actually stand up for user privacy, and saying that we should just trust the company to do so. So, if Bob looks like a good guy, maybe they'll stand up for him. But if standing up for Alice could make Google look bad, complicate things for the company, or seem ill-advised for some other reason, then Google insists on having the leeway to simply hand over her reading list after a subpoena or some lesser legal process. As Google Book Search grows, the pressure on Google to compromise readers' privacy will likely grow too, whether from government entities that have to approve mergers or investigate antitrust complaints, or subpoenas from companies where Google has a business relationship, or for some other reason that emerges over time.

We need more than "just trust us" here. EFF has spent the last three years suing AT&T because that company decided, for reasons we still don't know, that it would not stand up for user privacy when the government came knocking. Now, the situations aren't exactly alike -- AT&T had a clear legal duty to protect users and demand a warrant, while Google may have more legal options -- but that makes it all the more important that Google commit to making the choice to push for a warrant. Reading is deeply personal -- as personal as your communications -- and we think that Google has a duty to the public to commit to fight for the same level of protection for your bookshelf as for your email.

So that's our big disagreement. We remain hopeful that Google will step up and promise to maintain the standards you have come to expect in regular bookstores and libraries in its Google Book Search project. But if it doesn't, we're going to ask the Court to require them to do so, both on behalf of EFF, but also on behalf of a number of authors and publishers who recognize that reader privacy is too important to be left behind now. Google needs a federal court to approve this huge project that we expect will impact the way people read in fundamental and important ways. Court approval shouldn't come unless reader privacy is as protected in the online world as it is in the offline world.

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