Posted by Thomas R. Burke

Still no final word from the court on yesterday’s showdown between Google and the Justice Department — although an order will likely come out this week — but U.S. District Judge James Ware appears to appreciate the concern that the federal government’s subpoena request smacks of surveillance. Delcan McCullagh’s account of the contested hearing notes that the judge, based in San Jose, is reluctant to give “everything it wanted because of the ‘perception by the public that this is subject to government scrutiny’ when they type search terms into Google.com.” Discovery battles are notoriously resolved by “splitting the baby” — both sides are sent home with something, but far less than they wanted. This however, is not your typical discovery battle. It will be interesting to watch if Google will appeal Ware’s decision. Ironically, Google’s decision to continue this battle in the Ninth Circuit Court of Appeals will largely depend too on whether the company is comfortable with the public’s perception of what search information — from now on — will be accessible by the federal government.