Internet Search Engines And Privacy Under The Subpoena Power Of The United States Rules Of Civil Procedure

May a search engine company be subpoenaed to produce documents (search inquiry terms and index of websites) as a third party to a civil litigation? A simplistic and short answer may be, yes. Yet within a litigation context, this question entails deep analysis of rules 26 and 45 of the United States (“U.S.”) Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) and the specific facts of each case. Some important questions to ask are the following. Is the government or a private party the one requesting the subpoena? What is the scope of the request for production? In what state is the litigation being held? What is the underlying cause of action? U.S. case law shows that compelling a search engine company, as a third party, to produce documents about its users’ inquiry terms, e-mail content, and URL indexes is a broad topic that has been solve in a case-by-case basis. In addition, some search engine companies like Google are more protective of its clients’ information than others and may be willing to quash or request modification of the subpoena, which definitely changes the outcome of the case. Since the subpoena power is a procedural question in nature, most U.S. Courts have avoided the privacy issue analysis when facing cases where Internet search engine companies have been subpoenaed to produce documents related to search activities. Thus, the issue of subpoena to Internet search engines and privacy is still in its developing stage.

The following questions have been addressed in this article:

What are the most relevant considerations for subpoenas to Internet search engines under rule Fed. R. Civ. P. 45?
What are the most relevant considerations for subpoenas to Internet search engines under rule Fed. R. Civ. P. 26?
May the government subpoena a search engine company as a third party?
What are the interests involved and the holding in this action to compel against Google?
May an Internet service provider or search engine company oppose to a subpoena as direct party claiming protection under the safe harbor provisions of 17 U.S.C §512?

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