The Google Subpoenas:
In the course of its litigation over the constitutionality of the Child Online Protection Act, aka COPA, the Justice Department has issued a subpoena attempting to compel Google to disclose a) a sample of 1 million Google queries, and b) all of the Google queries that were entered in a one-week period (absent any identifying information). Google has refused to comply, challenging the subpoenas as irrelevant and overbroad, as well as raising other arguments.
The government needs this information, it alleges, because under Ashcroft v. ACLU, the constitutionality of COPA may hinge on it. To make a long story short, COPA requires commercial providers of adult materials to put pornography behind password gates or other authentication screens to help make sure it not readily available to children. The key issue in the COPA litigation is the effectiveness and restrictiveness of filters versus COPA screens as mechanisms for keeping pornography out of the hands of kids. DOJ's position is that COPA screens are more effective than filters, so the law requiring screens is constitutional under the First Amendment. DOJ's argument is that it needs the information from Google to explain the role of search engines in locating and obtaining pornography, which is then integral to understanding why filters are not an effective alternative to COPA screens.
I'm hoping VC readers can help me understand and assess these claims a bit better. There are two related issues here, I think. First, how are the results of the Google subpoenas going to help answer whether COPA screens are more effective than filters? In other words, what might the results show that will help DOJ make its case? And second, what other data is out there that might address these questions either as effectively or more effectively than the information requested in the subpoenas being litigated?
The government needs this information, it alleges, because under Ashcroft v. ACLU, the constitutionality of COPA may hinge on it. To make a long story short, COPA requires commercial providers of adult materials to put pornography behind password gates or other authentication screens to help make sure it not readily available to children. The key issue in the COPA litigation is the effectiveness and restrictiveness of filters versus COPA screens as mechanisms for keeping pornography out of the hands of kids. DOJ's position is that COPA screens are more effective than filters, so the law requiring screens is constitutional under the First Amendment. DOJ's argument is that it needs the information from Google to explain the role of search engines in locating and obtaining pornography, which is then integral to understanding why filters are not an effective alternative to COPA screens.
I'm hoping VC readers can help me understand and assess these claims a bit better. There are two related issues here, I think. First, how are the results of the Google subpoenas going to help answer whether COPA screens are more effective than filters? In other words, what might the results show that will help DOJ make its case? And second, what other data is out there that might address these questions either as effectively or more effectively than the information requested in the subpoenas being litigated?
Related Posts (on one page):
- Government Expert's Explanation for the Subpoena of Google Records:
- The Google Subpoenas:
If you want the other data you could always google for it...
Then again, that might result in irony overload. So, better this way I suppose.
Google doesn't know if you're behind a filter. So the data dump wouldn't distinguish between porn returned to filtered surfers and unfiltered surfers. Google can't even always tell the difference between a live user searching, and an automated system using the service.
Plus, many filters will go ahead and retrieve the porn, and just not display it to the user. So porn may be served to a filtered surfer's computer, thus showing up in Google's records, but the user is still effectively protected.
Plus, most of Google's porn-serving is vicarious. Google tells you where to find the porn, but Google doesn't know if you click the link and actually see the porn. Google Images is the obvious exception to this, but still subject to the problems above.
So the rationale for the subpoena (if there is one other than simply to establish a precedent) must be something to do with the statistical distribution of search terms or something similar -- that's the only way that the subpoena would not be unnecessary. It is far from clear to me how statistical information about what terms people search for is relevant to the effectiveness of filtering software; maybe someone else could hypothesize such a link.
What's the difference? Google is not a party to the litigation (I'm assuming here). Google would be affected, but so would any doctor if the question is medical malpractice and the duty of care.
Frankly, this sounds too obviously like over-reaching by the government. Am I missing something?
It's worth noting that this subpoena was issued last summer, I believe, but only became public knowledge because of recent court filings relating to it. Also pertinent is that Yahoo, AOL, and Microsoft all acknowledged receiving and complying with a similar subpoena (one of many links here).
Isn't there a limit to the number of searches that you can do using the Google API (something like 2,000)?
If the government argues the way you speculate, they're going in a weird direction. Most filters are equally effective for blocking accidentally-encountered porn. They'll block Playboy.com whether you got there by searching for "playboy" or for something innocuous.
More likely, IMHO, they're just trying to set a precedent that they can subponea large volumes of people's searches. So, when they choose to start procesuting people for porn, they can quickly grab the data on millions of people to do a quick sweep.
DOJ wants the lists of *searches* to bolster its case in another way... DOJ can index some known MHTM sites (perhaps finding them using filter-vendors' blacklists!), then show that people routinely search for keywords which occur on MHTM sites, whether or not they actually seek MHTM. In turn, search results routinely include MHTM sites, even when those have not been explicitly sought. For example, a search for "black beauty" might produce as many links to MHTM sites as to sites discussing classic childrens' literature. The DOJ will then suggest that since routine searches will find MHTM sites, and filters often miss MHTM sites, it is likely that children using search engines will click through to MHTM even if not seeking it. So, the DOJ will argue, a law forcing MHTM sites to keep out children is necessary to protect children from MHTM, because filtering doesn't work and neither will parental supervision, given that MHTM results will be mixed in with desired results to perfectly prim search requests.
(It is well-known that people often begin their searches by specifying too few terms to obtain well-focussed results. It is a tribute to Google that it satisfies so many peoples' lame searches.)
As for whether other data would enable DOJ to make its case, I think that is as much a psychological question as a legal one. DOJ wants to go into court with "evidence from the largest search engines" because that will play well to the newspapers and the appellate judges. Even good evidence might be discounted if DOJ gets it from some less-famous source, or generates it by spidering the web itself. Critics would dismiss data from a less-famous source as narrow or biased. Critics would dismiss data gathered by the DOJ as biased, even tainted, and ab-initio worthless.
What a horrible case. If the courts were coming to this as an issue of first impression (instead of an issue distorted by decades of crabbed and twisted precedent), the question would not be whether filters or user-screens are more effective. The question would be whether opressive regulatory requirements and concomitant felony prosecutions for petty technical slips are a Constitutionally-sound way to limit free speech over the Internet.
Blacklisting is only one mechanism used by filters. Many also examine website content as it comes in, and block access if the site is judged too risky. The technology to do this with pictures (an "is that a dirty picture" algorithm) exists, but I don't know if it's made it into a commercial product yet.
My understanding of this is shaky at best, so I apologize if I'm going on the wrong track, but wouldn't that be what the government would want to find out? While Playboy.com would be filtered out, perhaps another site would sneak in under the filter, and if enough of those existed, it could bolster support for the argument that filters alone are ineffectual. That said, your first comment is very on-point -- the information requested could be useless in a legal argument about the effectiveness of filters.
Would it help you to know that your's was the first to properly answer the question? I would second most of what Mark says as far as my best guess at the government's intent. It's not enough to show that Google retrieves porn. Everyone knows that. The question is whether there is porn out there that the filters are not blocking. As Mark explained, the way to show that is to find porn sites that Google is indexing and the filters are not.
I did find this part of Mark's comments amusing:
"The DOJ expects to find a fair amount of non-filtered MHTM, thus bolstering its case that filters do not work, and suggesting that they never will"
This is somewhat ironic since the USSC recently endorsed the requirement by the Federal government that libraries who take e-Rate funds have to install Internet filters to "protect the children"!
http://www.supremecourtus.gov/opinions/02pdf/02-361.pdf
Per the article, here's what Google's been asked for which is a bit different than Orin's characterization.
The government wants a list all requests entered into Google's search engine during an unspecified single week _ a breakdown that could conceivably span tens of millions of queries. In addition, it seeks 1 million randomly selected Web addresses from various Google databases.
The 1 million randomly selected web addresses seems to be an effort to determine what percentage of websites are porn sites. (Though I'm not sure how they're going to determine this short of criminally abusing an army of interns.) I can't imagine what argument they want to make based on the queries. Maybe they're trying to demonstrate what percentage of people go looking for porn who would, therefore, potentially have their rights violated by the COPA?
Google Image search does indeed offer a filter option that purports to weed out pornographic images.
BTW, I don't see how the government can subpoena "random web addresses" from Google since it has just as much access to these addresses as Google does. In fact, the DOJ is free to use Google's own website to gather the data it seeks.
I'm pretty sure that Google is just blocking images based on their site of origin. For example, it will block all images from playboy.com but not from fbi.gov. I don't think it's actually doing any kind of analysis of the images. From everything that I've read, filters that claim that they can actually tell what kind of image is being displayed (nude + sex versus nude + art versus skin tones) never pan out when subjected to real-world testing.
They're not.
In other words, what might the results show that will help DOJ make its case?
Nothing. That's not what they are interested in anyway. Let's grow up. They want to see how many hits PETA and the CATHOLIC WORKERS and other threats to humanity are getting, and trace things like that.
And second, what other data is out there that might address these questions either as effectively or more effectively than the information requested in the subpoenas being litigated?
Since MSN and Yahoo, wimps that they are, have already given the government all their data, that is more than sufficient for the government to test whatever theory it wants to test. So obviously, one point is they want to establish the right of the government to get this type of data going forward, so that if porno sites use only Google from now on, they can have access to that. Obviously, prior to this issue, one has to assume that whatever they are looking for with regard to pornography, it would have been sprinkled over Yahoo, MSN, and Google, etc., so there would be no logical need to see Googles' records also.
No reason unless you are Big Brother and want to invade every last pocket of privacy of individual citizens.
Google returns links. The presence of a link (which isn't in and of itself pornographic) in a search result tells us nothing about whether someone trying to access the content at that link will be successful.
The content itself may be blocked by a filter on the searcher's computer or by some measures at the content provider's site so I don't see how search logs help the govt's case. Is the the govt is arguing that Google has an obligation to hide links to porn? Even from adults?
I know, I know, cheap political shot, but I couldn't help it. (And btw, if this were a terror case, I've no doubt that's what they would have done, and probably already have done.)
1) Take 1M random URLs so you can profile what's available on the Web that you can get to via Google (you need this, because Google has the largest share of search traffic)
2) Scrape the contents of those pages into a big database
3) Get a week's worth of queries from Google to profile the public's searches (again, you need this, because Google has the largest share of search traffic)
4) Apply those queries to the scraped pages
5) Pass the resulting URLs through a wide sample of commercially available filters and check what gets through
6) Look for statistical correlations (or just inflammatory anecdotes) between pages children would look for and pages that will make them go blind.
If you wanted to know how often kids in the wild *actually* stumble across porn that filters don't block, how else would you figure it out?
It's very hard to generate a list of random web pages that is uniformly chosen (i.e., each page on the web is equally likely to be in the sample), but that is what you need if you want to make statistically valid generalizations from your sample. Some of the simpler methods for doing this turn out not to generate uniform samples. The best way to get a uniform sample is to work very hard to enumerate all of the pages on the web (as Google has done), and then to pick at random from that enumeration (as DOJ has asked Google to do).
(2) The request for all search terms for a one week period is harder to figure out. If they had asked for a sample of (say) one million randomly chosen search terms from a one-week period, then I would guess they wanted to do a sampling-based analysis of what fraction of searches had some property (as above, they could do this for any property they liked). The mystery here is why they would need all of the search terms, and not just a sample.
One possibility is that they want to determine the absolute number of searches in a week that have some property. But they could do that (with only insignificant statistic sampling error) if they had a random sample of search terms and knew the total number of searches done in that week. So I don't think this sort of simple counting analysis is the answer.
My best guess here is that they want to do a study to answer a question like this: Among all of the search terms that have Property A, what fraction also have Property B? (Again, A and B can be almost anything.) If you didn't know in advance exactly which properties you wanted to do this for, and you thought that the properties might be somewhat rare, then a limited-size sample might not be enough, and you would want the whole list of search terms just to be safe. (Presumably DOJ is assuming it will be hard to go back and ask for more later if what they get now turns out not to be enough. That's a realistic assumption, given how litigation usually goes.)
It's worth noting that the search terms DOJ gets will be from some time in the past (they say they don't care when), and DOJ probably won't be in a position to determine what arbitrary web pages looked like back then. Maybe they're planning to assume that most pages are unchanged (at least in the respects that they care about) since the search term data was created. If they wanted to do this, recent data would be more valuable than old data; but the request doesn't seem to care how old the data is. This suggests that maybe they just want to look at the search terms themselves, and not at the web pages they point to.
Google's competitors have complied with the subpoena because their data isn't as good or as valuable as Google's. It's the difference between having the government try to subpoena Intel to release their future product plans, and having the government subpoena Ford for details of the Edsel.
Minnie, on the other hand, rocks my world.
Wait, porn is illegal in this country? When did that happen?
So if getting that data costs Google anything, I believe they just bill DoJ for the cost.
"...put[ing] pornography behind password gates or other authentication screens..."
and a "filter". Both have to know, somehow, whether the material is pornography or not. In the password gate/authentication screen scenario, Google (or somebody) needs to determine whether each site has pornographic content in order to enforce the password/authentication. In the case of a filter, the filter provider has to determine whether each site has pornographic content to determine whether to filter it.
So isn't this a case of merely determining who should be doing the filtering - Google, or people accessing Google?
Also, may I point out, humans can't even necessarily agree on what's pornographic, so how is a computer supposed to do it? For example, is Michaelangelo's David pornography? An oil painting of a nude? Photos of a woman undergoing a mammogram? I see many examples of potential false-positives.
I would argue that not only is it pornography, it is explicitly homosexual pornography. As such, it is not protected by free speech and is illegal in most states. Next question.
1) Understand the behavior of current web users: This has nothing to do with the government's stated goal of proving COPA more effective than filtering software. The government apparently thinks that a day or a week of Google data studied by the government will be more reliable than the tons of existing research into online behavior.
2) Estimate how often web users encounter HTM material in the course of their searches: again, what relevance is this in determining COPA vs. filter effectiveness? The issue is how often minors encounter HTM material. The search data won't provide the user's age. If they want to determine how often minors run across HTM in the course of a day's surfing they should capture minor surfing behavior.
3) Measure the effectiveness of filtering software in screening that material--finally, an objective that at least has some relevance to COPA. However, filters and blockers block the http request (either queries or gets). I'm unaware of any software that removes search results from the list before it's presented to the user. So unless I've got that wrong, Google results will still return the websites. The software kicks in when the user tries to select the website. In that case, Google's search results are meaningless. The DoJ can find their own extensive list of HTM sites and compare that against filtering lists.
Google's first objection is on relevancy grounds and that makes the most sense. Their lawyers should be able to shoot down any pretense that this data would "reasonably lead to admissible evidence".
Dan Drezner thinks the government is trying to set a precedent. That seems reasonable. It may also be an attempt to find query patterns for pedophiles on the hunt for kiddie porn and/or children--a worthwhile goal, but one that doesn't have much to do with COPA.
That being the case, the George W. Doofus administration should warmly embrace Al Gore's call for an independent counsel to investigate the warrantless wiretapping of American citizens within the United States.
In what States is explicitly homosexual pornography illegal? Would you happen to have a list of States with actual statutes or a recent history of active prosecution?
On another subject: I am not sure I understand how requiring U.S. sites to have credit card - authenticated password screens is going to be more effective than filtering software. If you are operating a porn site in, say, the Netherlands, what can the U.S. DOJ do to enforce a requirement for a password screen? At least the filtering software can cover a lot of off-shore sites, which I would think would be beyond the reach of U.S. law. (Of course, the AG has such an elastic view of what constitutes law, who knows?) Would it be possible under the law to require ISPs to filter out foreign porn, the way China filters out political dissent?
The SCt seems to have considered the things I was going to mention (from the Syllabus; sorry for the length, despite its being concise):
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined.
Good ole Clarence Thomas!
Oh, remembering there was once a guy running a lawyers' conference on the old networked BBS systems back in the 80's who eventually confessed to being a layman:
Smithy, you said:
Flat out, are you a licensed attorney at law in the United States?
Where differences may exist between Google and Yahoo is in the ranking algorithms. Industry observes typically score the two companies extremely close on that parameter as well. It's closer to asking for the plans of the latest Intel and AMD chips than it is to asking for the plans to a Ferarri and an Edsel. The two companies do different things well, and for subtle queries you should query both Google and Yahoo. Microsoft, AOL and A9 are probably not worth bothering with at this point, unless you want Amazon content in which case you should use A9. Both companies are working on making a categorical leap in rangking, but according to searchenginewatch.com, most people can't tell the difference between the two search result sets when the identifying information is removed from the presentation. A year and a half ago Google was ahead, but they're essentially even now.
So why did Yahoo comply? Probably because their legal department said it was a losing lawsuit. They might have gotten some consideration for not fighting, such as the ability to disaggregate query threads [ie., if a searcher does a query and then one minute later comes up with a refinement the subpeona might ask for those two queries to be grouped, but Yahoo might have counteroffered that they give the query log -- but without query threads grouped]. Another thing they might have gotten relief from is the requirement to tell the DoJ what links were actually clicked on.
Google made the opposite decision. They too may believe that they are likely to lose the case, but the publicity they got for fighting is well worth the million dollars or so of legal fees.
For the record, I remember making at least one Google search on an innocent subject which returned links to porn sites. On the other hand, I've made plenty of other searches which have not, so I think it's rare but not unknown.
I shouldn't have said it was illegal in some states. But I do believe that it might be considered homsexual pornography. As such, it is treated differently under the law than other forms of expression.
Obviously, that is a very thorny question. But let's not pretend that internet pornography isn't a big and growing problem. Questions of legality aside, I have no sympathy for those who might be embarrassed by having their love of internet pornography made public. There is no reasonable expectation of privacy when one is trolling the internet for pornography.
Legal issues aside (!), I'm fond of the implication that there's no erotic component to the female gaze. No, there's no way that women could consider the David sexually.
There's also no reasonable expectation of prosecution.
Think of what Mark Seecof said about 'black beauty'. Maybe the project is about identifying search phrases that the DOJ wouldn't think of itself. Maybe they can't imagine the words with double-entendre meanings; maybe they're no good at searching for porn using innocent phrases. So they want the professionals to do it for them.
There's an extension of this logic that might be about filtering on various words and phrases. If 'black beauty' consistently turned up links to pornographic material, would there be an effort to limit the search results? If so, wouldn't the search providers already be on the case, on the basis of having a better filter? All told, it does seem that the DOJ is busy making work for itself, uneccesarily.
Are we going to argue that a work of art escapes the P label because it's old and its creator is dead and famous?
If I put a statue "by Lopez" out there with the attributes that David exhibits, you don't think that it's going to be labeled pornographic?
I think what smithy is trying to say is that the Administration has a right to protect us from child molesters and terrorists that are using google to find like-minded evildoers and sickos. As for people using the Internet to find "regular" porn, if it's not illegal why should they care that everyone knows they're viewing it? If you're not doing anything illegal, you shouldn't have anything to be ashamed of.
And if it's homosexual pornography, so what? Aren't gay people always trying to thrust their lifestyle on the rest of us whether we want to hear about it or not? Aren't they trying to indoctrinate our children with Hollywood movies and television sitcoms? So why should gay people be ashamed if the government knows about their love of pornography? It's not like the rest of us ever get a break from hearing about them being gay. So why should they have an expectation of privacy in looking at the kind of smut we already know they're looking at anyway? Particularly if this privacy comes at the expense of allowing our enemies to use google as a resource without fear of being caught. For now, the Supreme Court has said that being gay is okay. Until we get a decent Christian majority in this country to pass a Constitutional amendment saying otherwise, homosexuality is "legal" in the strictly secular, political sense of the term. So again, if it's legal why be ashamed of it? Why keep it a secret? The government's trying to protect all of us, saints and sinners alike.
I'm not an expert on the technology here, but this Administration is trying to keep us safe from terrorists. I think they're doing a damn fine job. If they say they need to subpoena google's records to keep us safe from foreign terrorists (Al Qaeda) and domestic evildoers (child molesters and what have you), I don't think we should let the hysterical concerns of moonbat privacy nuts and cowardly gays keep us from protecting ourselves. The Constitution isn't a suicide pact, people.
This distinction ought to have been more clearly recognized in much of this discussion. For example Michelangelo's David is indeed pornography, capable of arousing a prurient response. Given that it does not depict a homosexual act, and gets such response from heterosexual females as well, it is not male homosexual pornography. And, given that it is has been recognized as a major work of art by one of the most famous European artists for longer than this nation has existed, its artistic merit can hardly be challenged... meaning that it cannot be banned as Obscene.
In fact, the phrase from the CODA law that gets my attention the most is "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors". Almost verbatim from the SCOTUS case. However, under this law, minors include anyone under 18. How, pray tell, do any of these merits change, merely because of the the viewer is a teenager? Because their hormones give them a higher prurient focus?
As for how these searches could help the DOJ: it's easy to use Google to search for porn. It's harder with content filters; however, successive refining searches are standard to home in on what one is looking for, and it may be possible to use such to find one's way past the filters. Additionally, the hack for using Google Search as a proxy server is fairly well known, and might get around some of the cruder filter software packages. By seeing what people are searching for, they might be able to find instances of such refinement. I'm skeptical, though... I'm not sure the DOJ realizes exactly how many searches per second Google handles.
Thanks Comrade, this is a fine expression of the viewpoint of thought from our friends in Cuba and China. It's good to see that totalitarian thought is alive and well here in America. If this is what passes for a "conservative" viewpoint today, it's a sad statement of the conservative movement in our country.
DEGOP -
The point of this dicussion is (ostensibly) to determine whether the information DOJ has asked for is going to actually help them pursue their stated purpose. The suspicion of those crazy people who don't believe it will is that they have an ulterior motive. We only started talking about gay porn in particular because smithy, rather incomprehensibly, thinks the David is gay porn, so your little rant was somewhat misplaced.
No, it's a fine expression of the viewpoint of decent people everywhere. Decent people, as distinct from child molesters and perverts, have nothing to be ashamed of. Therefore, decent people don't mind helping the government protect us against sickos and terrorists. Decent people don't feel the need to hide behind activist judicial precedents that create phony privacy rights for smut-peddlers and lowlifes. Coincidently, decent people are also the ones who fight for America overseas, creating the blanket of security that enables cities like San Francisco and New York to flourish. How long do you think the Taliban would tolerate these enclaves of perverts? But by all means, got to Iraq and surrender to them if you want to find out what kinds of people we're dealing with here.
It's funny that you have to point out repressive left-wing Communist regimes to justify your own complacency in GWOT. Please, keep your party's national platform firmly embedded in the Sept. 10, 2001 mindset. Every time the Democrats lose, it helps keep Americans- even you- safer. With waffling wimps at the helm, Osama would barely even need to attack us again to declare an Islamofascist victory.
I thought the DOJ wanted the information because it would help them track down smut-dealers peddling their filth to children, as well as helping track down child molesters and maybe, just maybe, AQ. Since the discussion is about pornography, particularly depraved and sickening forms of pornography that children could easily access thanks to the enablers at the search engines, a discussion of homosexual pornography seems quite germane. But thanks for trying to commandeer the discussion away from the fundamental issues. I wasn't aware that the PC police had jurisdiction in this thread, but now you've set me straight.
DNFTT
"Prevailing community standards" is the only test worth a darn. We abandon it at our peril. The problem is that community standards in San Francisco are a lot worse than they are in, say, Kansas. Therefore, on the Internet, serious protections have to be in place. Otherwise, the children in Kansas might end up as corrupted as the children in San Francisco, even though their parents try to protect them.
It's been a while since law school, though, and I wasn't very interested in following pornography law even back then. So correct me if I'm wrong about any of this.
The distinction between gay and straight pornography comes into play because vast swathes of America find gay pornography to be greatly worse for children than heterosexual porn. I, for one, believe criminal penalties for exposing children to deviant forms of pornography should be even higher than the penalties for exposing them to more "natural" sexual activities. So in a sense, you're correct. It's more a distinction of quality than quantity, or maybe it's fair to say that once you've crossed the threshold of illegality it should become an issue at sentencing.
Terrorists come into it insofar as they use the Internet to communicate with one another. It is my unshakeable belief that misguided advocacy of this imaginary right to privacy hamstrings government efforts to monitor online communications- some of which are indisputably Al Qaeda cell communications.
These questions only become complicated when you accept the logic of asinine Supreme Court precedent. Once Alito is one the court, and once Stevens retires and Bush replaces him with some reliable interpreter of the Constitution (Garza perhaps, or maybe Miguel Estrada), then you'll quickly see this nonsense about "penumbral emanations" and so-called privacy rights put to rest once and for all. The simple issue here is keeping America physically safe from terrorists, and keeping it spiritually safe from libertinism and deviancy.
That's the way we see things, anyway. We, the majority who always seem to turn out and keep America red in spite of all the Frenchified posturing of the Democrats.
My point, exactly. A lot of liberals are very against regulating pornography. They claim there's nothing wrong with it. If there's nothing wrong with it, then why would they care if others knew the look at it. If they have nothing to be ashamed of, then why are they so secretive?
So, because Orin Kerr asked for knowledgable opinions on whether or not the DOJ's request (which is about pornography) would actually be useful for its stated purpose (which is helping prevent children seeing pornography), and some people hear have argued that in fact it will not be helpful to that end (enforcing laws which prohibit the distribution of pornography to minors), Frenchified Democrats are trying to impede the government's using the internet to investigate terrorist cells?
Yet another example of how fuzzy-headed thinking puts Dems on the wrong side of the issue. They give us the ammunition to paint them as being for bad things and against good things.
Because, they are.
Those are all about filter effectiveness and are completely unrelated to whether or not the site turns up in a search.
I agree with Professor Hailperin on the importance of labeling correlating queries with the age of the searcher, given the state of obscenity law.
Cf. New York v. Ferber, 458 US 747 (1982) -- Justice White's opinion for the Court states that governments are allowed "greater leeway" in the regulation of pornography, and cites the Broadrick substantial overbreadth rule as applying: " '[Whatever] overbreadth may exist should be cured through case-by-case analysis of the fact situations to which [the statute's] sanctions, assertedly, may not be applied.' Broadrick v. Oklahoma, 413 U.S. 601 (1973)."
I agree with Professor Felten that, from a statistical standpoint, it is unclear why the DOJ is requesting all search terms in a given week. But from a legal standpoint it is possible/probable that, as Professor Felten surmises, the DOJ wants to ask for the maximum and then work with Google to negotiate an agreement.
I agree with Mr. Seecof that Google should be commended for often giving searchers what they desire despite ineffective search queries. Every Googler should always know to put phrases in quotation marks; it is unfortunate that that isn't widely known. For example, " 'New York Times' " (i.e., with quotation marks in the query) gets 197,000,000 hits, while "New York Times" (i.e., without quotation marks in the query) gets 348,000,000 hits. On the first page of results on the Google query without quotation marks is a web cam of Times Square. That Google at the top of their results page offers a Google page "News results for New York Times" resulting from the query without quotation marks (as well as with quotation marks) is a great feat of technology (one that Yahoo has as well; it's possible Yahoo copied that from Google -- I don't know).
Here are the links to the three salient comments. Thanks again.
Mr. Seecof's comment
Professor Felten's comment
Professor Hailperin's comment
Here is the key quote from the syllabus in Ferber:
"Prevailing community standards" is no test at all, since no person seeking to produce, distribute, or consume sex-themed materials could possibly know what that standard means. It's a travesty of justice for our courts use such a vague and unpredictable "test" to decide people's liberty.
A lot of people would say that San Francisco's standards are a lot better than in Kansas, because they permit more pornography. A lot of people like porn: Wherever you make it available to people, they buy it, rent it, use it. Porn is not a problem on the internet. Rather, it's one of the many enjoyable features of the internet.
Besides, it seems to me that the internet itself is a community, and the prevailing standard there is broader and more permissive than any other. A lot of us like it that way.
Smithy says:
"I shouldn't have said it was illegal in some states. But I do believe that it might be considered homsexual pornography. As such, it is treated differently under the law than other forms of expression."
Huh?
First, pornography in general is not illegal in any state. For a specific item of pornography to be illegal, it must be obscene. One bar to obscenity is artistic value. I am certain that there is not a judge anywhere in the U.S. who would not recognize the artistic value of "David." Ergo, "David" cannot be illegal anywhere.
Second, where in the vast trove of constitutional obscenity analysis is there a distinction between homosexual and hetrosexual? (such that the first COULD be illegal but the second could NOT?) Where is a "homosexual" expression (whatever that might mean in your mind) capable of criminalization whereas a comparable "hetrosexual" expression is not?
Finally, what aspect of "David" makes you conclude that, even if it were obscene, it would obscene in a homosexual manner? Do lesbians ogle at "David" when chaste hetrosexual women would be indifferent? Or are the only persons who would ever wish to gaze upon the male figure homosexual men? Or are the endless stream of tourists just prurient dirty minds needing a break from viewing one madonna-and-child after another?
How are you determining those community standards? Using U.S. census figures, Wikipedia, and a popular guide to strip clubs, we can construct a crude proxy for community standards. San Francisco has 21 strip clubs for a population of 744000, or one per 35000 residents, whereas Kansas has 36 clubs for 2.7 million residents, or one per 76000. A significant difference, but not exactly night and day.
Besides, you're comparing the entire state of Kansas to a densely populated city. California as a whole has 212 strip clubs serving a population of 36 million, giving it one strip club per 170000 people. Put another way, Kansas has five times as many strip clubs per person as California.
This sort of thing is why "community standards" is not a very good way to define the law.
Jeez. Isn't it obvious?
What's more, debates about banning obscenity have raged for decades; I doubt we'll be able to add much in these comments to what we or our fellow commenters already know about those debates. On the other hand, the Google subpoena does raise some interesting and not yet discussed-to-death issues; maybe we should stick to them.
Quarterican and Defending the Indefensible: Funny!
Finally, if I may sneak one in under the wire before we get back to Google, DEGOP, you posit yourself as an authority on morality. I am curious what you think of Bill Frist.
According to reports in 1999 and the recent NYT wiretap stories, the NSA has been monitoring internet chatter for at least 5 years. Basically, if it goes over the internet, then the government has already seen it... At least that's how the MSM is trying to smear the President (to be fair, they smeared Clinton over this in 1999 on 60 minutes). It would seem to me that the government already HAS the relevant data, they just don't have a legal justification to bring it up in court...
I'm of a split mind over the entire case in general... I'm not a lawyer, nor do I play one on TV... (I lurk in the Volokh Conspiracy because I am very interested in most of the topics the professors blog about, and for the most part, you see like Libertarian leaning conservatives, which is where I put myself).
On the one hand, I have a 15 year old child who managed to access some porn. Now... I can blame Google, or the Government, or.. I can step up to the plate and take responsibility and install filters to prevent his ability to access these sites (which I have, in the form of a router that comes with parental controls, meaning he can't hack around them).
On the other hand, the average parent may not have the slightest clue what's going on when their child surfs (note to all parents of teenagers, YOU NEED TO SNOOP AROUND YOUR KIDS COMPUTER!
Now what I am good at is economics and statistical analysis. I'm having a hard time figuring out how obtaining the search terms and their frequency of use is going to determine the efficacy of internet filters. It's simply going to tell you how many people searched for keywords like nude or porn, etc...
Now... Google does know how many click throughs were entered (it's a hidden part of the link when you click on it. They use that information to help determine "relevence" for the search terms involved... It's actually quite sophisticated.
However, the one thing that is completely missing, and which IMO makes any of these studies irrellevent is that you have absolutely no idea how many minors "clicked through" compared to how many adults "clicked through". It's built into the supoena, that all private information is stripped. Not even IP info is tied to the data that the government wants, as I understand it.
It would be much more logical for the Justice Dept to write a spider to search Google for the various terms and see how often a porn site got connected past a filter...
As a libertarian leaning Republican, I have problems with the current law being settled in this court case. It's the parents responsibility to know where their son or daughter is surfing. (on the other hand, with all the times my son as tried to hide stuff he's accessed in the past.... sometimes gov intervention doesn't sound so gad.
This applies to the ads on a Google search results page, but not to the main search result themselves. Those take you directly to the search result, without sending anything to Google. I just verified this two ways, both by looking at the HTML source for a Google result page, and also (just in case I was overlooking something) by doing a packet capture when I clicked on one of the links, so that I could see exactly what was sent, and what address it was sent to.
No, no, no. What I'm saying is that any talking about privacy is silly nonsense when people are trying to kill us, and talking about nonsense hurts us if we're really trying to win the GWOT. I don't want to belabor the point since it's off-topic, but there it is, written quickly using small words that even your average left-wing moonbat should be able to understand.
In other words, San Francisco has twice as many strip clubs per capita. A pretty significant difference to me.
I'm no statistician, so I'm not going to argue with your figures on Kansas-vs.-California strip club ratios. It's an interesting point, actually; I'd never thought about how many strip clubs there must be near Kansas City. But I will say that most of the strip clubs in Kansas are likely concentrated in a few of the larger cities- Wichita, for instance, KC, Topeka, and Lawrence. (I'm no Kansan, either, so I may be wrong here. Kansas is just an example for our purposes.) So it's not fair to compare the entire state of California, because it's much larger and includes many, many conservative counties. I'm thinking that most of the strip clubs in Californita are in the major cities. Again, the prevailing community standard in those cities is bound to be more lenient than in the rural areas. So my point is still valid, children growing up in cities are far more likely to be exposed to deviant sexual practices than children are growing up in rural areas with prevailing community standards more in tune with Judeo-Christian American traditions. Red states are more moral than blue states, and when the statistics appear to show otherwise it's usually because those blue states have red counties skewing the statistics (and vice versa, of course- even Texas has Austin).
When I first started reading blogs, I used to say the same thing about you left-wing kooks. But now that I've read some more of what you people think, I'm forced to concede that most of you seriously believe the garbage you spew. Go figure.
I apologize for continuing to discuss it. There were just a few minor points of clarification I wanted to get across. I promise not to discuss it any further, except to reply to this question:
I never said I was an authority on morality. Let's just say that I know immorality when I see it. As for Frist, he seems like a decent man. It's hard to trust any professional Congressman, and I've never met the man personally. But he does say things that need to be said, and he does a lot of good reintroducing morality into American political discourse. As far as his personal life, I can't say I know enough about it. I'm sure liberals are investigating him for something or other, and accusing him of something or other, though, so please get back to me when he's found guilty.
The answer is "the same authority it has to compel third parties to cooperate in any lawsuit -- a lot."
The subpoena power is quite broad, and necessarily so. If we want our judicial system to do substantial justice, the parties -- who, in our system, are the primary decisionmakers about what evidence the trier of fact will see -- must have the power to thoroughly investigate the facts in dispute. And it's just not true that only the parties to litigation ever have information that could be useful in determining the facts. At the same time, many third parties don't want to help; they may -- somewhat understandably -- think, "it's not my problem, and there's no upside to my getting involved, so I'm staying out of this." But imagine, just for example, the innocent bystander who witnesses a gang murder but doesn't want to become involved, out of fear of retaliation. We may sympathize with the witness's position, but society demands to be protected from murderers. Somewhere along the line we decided that the needs of the many sometimes really do outweigh the needs of the few, or the one. So we coerce the witness into turning over the evidence that the system needs to function properly. It may seem harsh but, assuming we want a well-functioning judicial system, I think it's necessary. So do courts and legislatures, apparently.
This is an abbreviated answer; there are times when obtaining evidence would be too costly, or would do violence to some even more fundamental principle, and there are rules to address those situations. But I'll leave those for another day, or at least another commenter.
The same sort of argument applies to warrantless wire-tapping. Some may have their "privacy rights" violated (though I would argue that there, as here, most of those who complain about this are engaged in illegal -- or at least immoral activity), but it is for greater good of the many. Safety concerns for the society as a whole must, in the end, have some claim in these arguments.
The same sort of argument applies to warrantless wire-tapping. Some may have their "privacy rights" violated (though I would argue that there, as here, most of those who complain about this are engaged in illegal -- or at least immoral activity), but it is for greater good of the many. Safety concerns for the society as a whole must, in the end, have some claim in these arguments.
And its the same sort of argument that makes me opposed to subpeona powers of any kind. There's no reason the witness should risk his life to protect some other fellow, and there's no reason Google should risk their business and good name to help defend a law they probably find odious in the first place.