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When Is Googling Required under FOIA?

Today the U.S. Court of Appeals for the D.C. Circuit holds that a federal agency may be obligated to "Google" someone before invoking their privacy interests under the Freedom of Information Act (FOIA). Specifically, if an agency relies upon the privacy interests of a private individual to deny a FOIA request, it must make a "reasonable effort to ascertain" whether the individual is still alive, and such effort may require the use of freely available internet search engines, such as Google.

In this specific case, Davis v. Department of Justice, an author sought the release of audiotapes between a specific individual and an FBI informant from a Louisiana corruption investigation over twenty-five years ago. The FBI denied the request, citing the privacy interests of the taped individuals, but was unable to determine whether the taped individuals were still alive (or over 100, in which case they would be presumed dead under FBI practice). Yet because the FBI did not turn to Google or other internet search engines to aid its inquiry, the D.C. Circuit concluded that the FBI did not make a "reasonable effort to ascertain" whether the taped individuals were still alive.

one has to ask why -- in the age of the Internet -- the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI's purpose, and with entries restricted to a small fraction of even the "prominent and noteworthy"? Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a "reasonable alternative" for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person's death.

JosephSlater (mail):
"Dead-tree source"? Is that expression sufficiently common and formal for use in an appellate court decision? Should I google it to find out?
8.22.2006 11:55am
A.S.:
Didn't I just read a story somewhere about Google harassing some people for using the term "Google" as verb to mean "to use Google (or any other search engine)" to find some information on the web? I wonder if Google will complain to the Judge here?
8.22.2006 12:08pm
Kristian (mail):

Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a "reasonable alternative" for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person's death.


Because, of course, everything you read on the internet is true, and there is no way to game google rankings to put deceptive pages first. (Sarcasm mine)
8.22.2006 12:19pm
Steven Vickers:
Because, of course, everything you read on the internet is true, and there is no way to game google rankings to put deceptive pages first.

I don't understand this argument at all. The government's obligation is to "make a reasonable effort to ascertain life status." Now of course it is possible to put false information on the internet, but such is true about any potential source of information, so the question to this non-lawyer seems to be a whether the effort expended in a quick Google (or better yet, Nexis) search--probably a few minutes--increases the chance of correctly determining whether a person is alive enough to justify the expense. My hunch is that it does.
8.22.2006 1:09pm
alkali (mail) (www):
The FBI would presumably also have access to the Social Security Administration's death records. (Up until 9/11 these were publicly available for genealogy and the like; I think this is no longer true but the FBI presumably can get them.)
8.22.2006 1:56pm
great unknown (mail):
What the Court is overlooking is that the FBI computer systems are so primitive that they may not have access to Nexis or "Google (and any other search engine)."
8.22.2006 2:58pm
cmn (mail) (www):
A.S.: You're right, Google's lawyers have been engaged of late in a desperate effort to stave off the impending genericism of their mark by sending cease and desist letters to people who use it as a verb. If you read the opinion though, you'll see that near the beginning Judge Garland actually drops a footnote to the OED, which apparently defines the verb "Google" as "to use the Google search engine to find information on the internet." The paragraph quoted above, however, muddies the waters by implicitly defining the verb "Google" as "to use Google (or any other search engine)." This is quite a dilemma for Google. I wouldn't be surprised if they send a (very polite) letter to Judge Garland requesting that she modify that part of the opinion.
8.22.2006 4:59pm
Al Maviva (mail) (www):
Interesting. We expect the FBI to conduct Google and Nexis searches in the course of carrying out FOIA disclosures, but grow hysterical about the privacy and 4th Amendment implications if it is disclosed that the FBI has done similar searches during the course of preliminary inquiries into individuals who may be of intelligence interest.
8.22.2006 5:59pm
aces:
The FBI would presumably also have access to the Social Security Administration's death records. (Up until 9/11 these were publicly available for genealogy and the like; I think this is no longer true but the FBI presumably can get them.)

The Social Security death index records are still available online:

http://ssdi.rootsweb.com/
8.22.2006 6:37pm
Richard Koman (mail) (www):
In point of fact, the FBI's googling abilities are severely constrained, assuming they are still operating under the legacy computer system they had before Trilogy imploded. I blogged about a Washington Post article that described their system so:


most employees had no PCs. They relied instead on shared computers for access to the Internet and e-mail. A type of memo called an electronic communication had to be printed out on paper and signed by a supervisor before it was sent. Uploading a single document took 12 steps.

The setup was so cumbersome that many agents stopped using it, preferring to rely on paper and secretaries. Technologically, the FBI was trapped in the 1980s, if not earlier.

"Getting information into or out of the system is a challenge," said Greg Gandolfo, who spent most of his 18-year FBI career investigating financial crimes and public corruption cases in Chicago, Little Rock and Los Angeles. "It's not like 'Here it is, click' and it's in there. It
takes a whole series of steps and screens to go through."
8.22.2006 11:04pm
Twill00 (mail):
(1)Googling a person with a common name to find out they are dead is a waste of time.
(2)The assumption that the FBI informant was a "prominent person" is interesting, but is it a fact?
8.23.2006 8:46am
In-House-Counsel (mail):
The Google aspect is interesting, but what's really noteworthy (and wholly ridiculous) is that this poor schmuck has been trying since 1986 to get these tapes and has had to appeal to the D.C. Circuit four times. Sure, the guy is a Kennedy assassination conspiracist and probably a nut. See book review
. But that doesn't change the fact that the FBI is obligated under FOIA to produce the requested records or determine — in good faith — that an exemption applies. The FBI's bureaucratic resistance, and the accompanying waste of the judicial resources, is pathetic.
8.23.2006 11:52am
Kristian (mail):

I don't understand this argument at all. The government's obligation is to "make a reasonable effort to ascertain life status."

However, I would also imagine they must make at least a good faith effort to ensure the source of the data is either authoritative, or can be easily verified that it originated from authoritative data. I mean, taking the word of any number of sources on the internet can lead you to believing false information (see also: Reuters, CBS, etc...)

My objection was not to using modern technology, but rather that simply googling is by no means a sufficient search. Many legal documents need to be originals or certified copies to valid. This is not easily done over the net, though of course with advanced security protocols, you can trust some information. But this, again, is not simply googling.
8.23.2006 12:43pm
Crust:
Interesting. We expect the FBI to conduct Google and Nexis searches in the course of carrying out FOIA disclosures, but grow hysterical about the privacy and 4th Amendment implications if it is disclosed that the FBI has done similar searches during the course of preliminary inquiries into individuals who may be of intelligence interest.

Say what? Who is "hysterical" about 4th Amendment implications of FBI Google searches (other than perhaps Al Maviva)? There is obviously a very live debate about whether wiretapping without judicial oversight and in (at least) facial violation of statute (FISA) violates the 4th amendment. But who is objecting to Googling on those or any grounds?
8.23.2006 2:57pm