Search engines take the stand

Judges are turning to Google and other search engines to check facts and look up information in cases--a trend that has some legal experts worried.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
7 min read
Fifteen years after his trial, a convicted drug dealer in New York state belatedly got a chance to clear his name--thanks in part to an Internet search.

A federal judge last November threw out Manuel Rodriguez's conviction and granted him a new trial after discovering evidence of potential jury tampering in a review of court records and queries on Web search engine Google. U.S. Magistrate Judge Frank Maas said that his review of the 1988 court transcript, coupled with looking up jurors' names in Google, had revealed that the assistant district attorney had "improperly" removed Hispanics.

"A Google search that I conducted" suggested that a removed juror had "a Hispanic name," Maas wrote in the court decision overturning the conviction.

Rodriguez finished his sentence before his new trial could take place. But his case nevertheless offers a striking illustration of the growing clout of Internet search engines among the judiciary--a controversial trend that's so far garnered little attention outside legal circles.

In the United States and abroad, judges are turning to search engines such as Google to check facts, to look up information about companies embroiled in litigation, and to challenge statistics presented by attorneys in court. Dozens of judges have penned opinions describing Google as a valuable--and sometimes crucial--source of knowledge.


What's new:
Internet search engines are having a profound influence on judicial research--a controversial trend that's so far garnered little attention outside legal circles.

Bottom line:
Some judges call Web search a crucial research tool, but critics of the trend are warning that searches on Google and its rivals are no substitute for the painstaking process of evidence and testimony.

More stories on Web search

To be sure, Google has no monopoly in the legal system. Yahoo's search engine popped up in the landmark Napster copyright case four years ago, and Oregon police tried to track a criminal defendant accused of firearm violations through Yahoo searches. When AltaVista was in its heyday, it also was mentioned in a handful of cases.

But in the last few years, Google appears to have become the courts' favorite search engine. The Mountain View, Calif.-based company--which announced its plans for an initial public offering last month--accounts for 41 percent of U.S. search referrals, according to statistics compiled by research company WebSideStory.

In one case in Ohio, a judge who ordered a mother not to smoke near her 8-year-old daughter cited medical journals and a Google search that lists 60,000-plus links for "secondhand smoke" and 30,000-plus links for "secondhand smoke children." In addition, the California Supreme Court has Googled for evidence showing that stun belts, which jolt prisoners with 50,000-volt electric shocks, can be harmful and should not have been used in a criminal trial. And an enterprising federal judge in New York did his own Google search to demonstrate that a watch, jeans and handbag retailer named Alfredo Versace was infringing the trademarks of the famous Gianni Versace design house.

Some legal experts warn that Google searches are no substitute for the painstaking process of evidence and testimony. "If a judge is taking as proof facts that are reported in any public medium that pertain to individual actions by persons involved in a case, that is troubling," said George Fisher, a Stanford University law professor. "Those are the sorts of facts that are supposed to be proved in the courtroom under the rules of evidence."

What appears in Google's sprawling Web index can have a profound influence on legal proceedings. In the case of Rodriguez--accused of selling crack cocaine to an undercover police officer--Judge Maas supplemented his review of the trial transcript with Google research. Unfortunately for Rodriguez, though, the result was too late: He had already served his sentence in the Wallkill Correctional Facility in Wallkill, N.Y., and had been released.

After conducting a Web search, an Australian federal court last June denied a visa request from an unidentified man from Sri Lanka. The court said the man's claim to be a famous filmmaker worried about persecution at home was "exaggerated," after a query turned up a blank. "His name does not appear when put into a search engine such as Google," one member of the government tribunal wrote. "I would have expected--if he indeed has the notoriety and is as well-known as he claims--that his name would have appeared at least in some context."

Is Googling permitted?
Rules governing out-of-court research are ambiguous about the use of search engines and, in the United States, tend to vary by state. In general, though, appeals courts have leeway in the sources they use. "Often appellate arguments require going outside the record of a particular case, because a judge or a panel must weigh the ramifications. What does this mean down the road?" said Dick Carelli, a spokesman for the Administrative Office of the U.S. Courts (AOC). "Tradition dictates that anything is fair game in terms of the research a judge or a judge's staff can do online."

While the U.S. Supreme Court has not cited Google as a research tool so far, its justices and their clerks often venture beyond legal treatises when drafting opinions. In one famous 1972 opinion, Flood v. Kuhn, Justice Harry Blackmun inserted a brief history of baseball that included a recitation of the names of about 80 prominent players.

Trial judges are more constrained. Rule 201 of the Federal Rules of Evidence says trial judges may take notice of public information only when they "resort to sources whose accuracy cannot reasonably be questioned." Most of the cases reviewed by CNET News.com involved trial judges using Google.

The AOC has no specific guidelines about Internet research done by trial judges. "There's so much available to them for computerized research that's in-house, I would think the occasions (for Google searches) are rare," said AOC's Carelli.

"I'm not that comfortable with judges going off in their chambers and saying, 'Let's see what we come up with on Google,'" said David Post, who teaches technology law at Temple University. "The evidentiary requirements are very important. If a judge goes off in his chambers and does a Google search and issues an opinion, the parties have not had a chance to argue about what 40,000 hits means. That's an important safeguard."

The casual use of Google--instead of relying on more rigorous research techniques--has raised eyebrows inside the judiciary.

In a bitter August 2002 dissent, California Supreme Court Justice Janice Brown upbraided her colleagues for relying on Google when deciding that stun belts should not have been used in a trial. The majority opinion cited newspaper and magazine articles, as well as pieces written by law students, that reported accidental activations of the React stun belt.

"We could have waited for a case that raised these questions on an adequate record," Brown wrote. "Instead, the majority, rushing to judgment after conducting an embarrassing Google.com search for information outside the record, has tied the hands of the legislature, to the likely peril of judges, bailiffs and ordinary citizens called upon to do their civic duty."

Last month, a New York county judge took a swipe at out-of-court research. Judge Charles Markey said that when he had some questions about a U-Haul warranty issue, he did not use Google, MSN Search or their competitors "to fashion a factual argument to sandbag counsel."

Courtroom appearances
In one court case involving Halloween costumes, Google was called upon as a kind of linguistic arbiter. Federal law says that imports of "fancy dress" clothing are not taxed, and the Bush administration decided that Halloween costumes should fall into that duty-free category.

The U.S. Court of International Trade disagreed. One of its judges, Evan Wallach, did a Google search of the term "fancy dress" and concluded: "The court found a Web page for the United States Power Squadrons in South Florida which described parties as 'fancy dress affairs with prizes for the best costumes...' Attached were photographs of participants in 'Roman' dress. The costumes were clearly home-made... There were numerous others examples in the United States showing similar usages of fancy dress for elementary school events and sale of cheap Halloween costume accessories."

Perhaps the most common type of case, though, that has lured courts to Google is the trademark dispute:

• One federal judge in Tennessee ruled that "Johnny's" was a generic word: "A search conducted on the two most popular search engines, Google and Yahoo, for the keyword 'johnny's' will retrieve a list of either 157,000 or 251,000 options of Web sites featuring everything from vegetable seeds to Irish pubs to military music lyrics. Even adding the additional keyword 'sauce' will result in a list of either 2,850 or 4,440 Web sites."

• A New York federal judge said a Google search had helped him decide that 24 Hour Fitness should not receive an injunction against a competitor that owned 24hourfitness.com. The judge said a search for "fitness industry" on the Internet revealed more than 1.6 million hits, mainly linking to sites related to physical training and conditioning.

• Google and other search engines helped a Maryland federal judge to reach the opposite conclusion. The court granted an injunction against a critic of mortgage lender Fairbanks Capital who had set up his own anti-Fairbanks Web site. But when the company's trademarked phrase was used in a keyword search in the Google search engine, approximately 349 matches were listed, the judge found. "The (critical) Web site is the first Web site listed. The Fairbanks Web site is not listed in the first 10 results on Google," the judge said.

• An Australian review panel decided that a private company could not trademark the color yellow when used for clutches and other vehicle parts. "There is nothing unusual about the colour claimed," the panel said. "A search of the Internet, Google.com: Accessed 12 November 2002, reveals that the colour yellow is commonly used in respect of containers or packaging for automotive parts."

The use of Google search in such trademark cases was applauded by Post, the Temple University professor. "There's a lot of talk in legal cases about what do words mean, what is their usage," he said. "This is a remarkable and more objective tool to find out how people use words...That opens up a world of wonderful possibilities. It's really exciting."