The hospital opposed the subpoena. Under Federal Rule of Civil Procedure 45(c)(3)(A)(iv), if the burden of compliance with a subpoena exceeds the benefit of production of the material sought, then the subpoena is quashed. Writing for the Seventh Circuit Court of Appeals, Judge Richard Posner concluded that the government's subpoena for the partial birth abortion records should be nullified ("quashed" in legal lingo).

Posner's reason for nullifying the subpoena turned on the privacy implications of the subpoena to the people whose records were involved. In analyzing the burdens of complying with the subpoena, Posner noted, courts must not only focus on the hardship to the companies or organizations producing the records (how expensive or tedious it will be for them to produce them), but also the effects that the production of the records will have on the people to whom the records pertain:

What is true is that the administrative hardship of compliance would be modest. But it is not the only or the main hardship. The natural sensitivity that people feel about the disclosure of their medical records--the sensitivity that lies behind HIPAA--is amplified when the records are of a procedure that Congress has now declared to be a crime.

In the Google case, however, the government claims that it is not interfering with the privacy of people using Google because: "The subpoena specifically directs Google to produce only the text of the random sample of serach strings, without any additional information that would identify the person who entered any individual search string."

But in Northwestern Memorial Hospital, the government was also seeking records without names or identifiers. Nevertheless, Posner concluded that the women had a legitimate fear that "when their redacted records are made a part of the trial record in New York, persons of their acquaintence, or skillful 'Googlers,' sifting the information contained in the medical records concerning each patient's medical and sex history, will put two and two together, 'out' the 45 women, and thereby expose them to threats, humiliation, and obloquy." In other words, Posner noted, it can be very difficult to completely scrub away all traces of identification from a particular record.

But what is particularly germane to the Google case is that Posner went even further:

[E]ven if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded.

This is a rather bold holding -- that even de-identified records can create a privacy invasion. It would thus seem to me that if the federal district court looks to the Seventh Circuit's decision as persuasive authority (it's not bound to follow it since it is in a different federal circuit), the goverment's subpoena will likely be nullified.

Even to the extent that the district court doesn't totally agree with Posner's reasoning, there's another reason why revealing to the government even de-identified search queries might pose a privacy problem -- the act of complying might chill people in the future from conducting searches on Google. Why? Because it may be possible later on for the identities to be reattached. Thus, if the goverment obtains the search records, isolates certain searches as "troubling" and then issues another subpoena to Google for the IP addresses connected to those searches, there's a chance that the searches can be identified. In other words, the government's subpoena now need not be the final step in the dance. More subpeonas may follow. And knowing this, people may be chilled in their searches.

Related Posts:
1. Solove, Google's Empire, Privacy, and Government Access to Personal Data