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Defending DeLay's Internet assault

House Majority Leader Tom DeLay doesn't think judges should use the Net. CNET News.com's Declan McCullagh says he may have a point.

The award for the most half-baked remark of the week goes to Rep. Tom DeLay, the former pest control entrepreneur who's now a top Republican in the U.S. Congress.

"We've got Justice (Anthony) Kennedy writing decisions based upon international law, not the Constitution of the United States?" DeLay told Fox News Radio. "That's just outrageous. And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous."

That was a memorable thing for any politician to say, up there with Hillary Clinton and Rick Lazio critiquing the phantom bill 602p and Al Gore's apparently serious claim to have "created" the Internet.

That said, did DeLay have a point?

Of course, as he should know, there are valuable Internet resources that any jurist should be able to peruse, starting with sites like Lexis, Westlaw and BNA, and including innumerable others such as Federal Register notices, the U.S. Congress' Thomas site, and government agency decisions.

Is it appropriate for judges to investigate the backgrounds of jurors, perhaps even scrolling through their home pages and family photo albums?

But there are also problems with unfettered Googling from the bench. Is it appropriate for judges to investigate the backgrounds of jurors, perhaps even scrolling through their home pages and family photo albums? Should judges scour the Net for reports on a topic rather than relying on traditional rules of evidence?

"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," George Fisher, a Stanford University law professor, told me when I was writing an article on this topic last year. "Those are the sorts of facts that are supposed to be proved in the courtroom under the rules of evidence."

The California Supreme Court drew fire after it 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.

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." (Brown is the same Bush nominee who's embroiled in the current Senate confirmation flap.)

Other examples of judges using search engines in dubious ways:

• Linda LeBoon sued the Lancaster Jewish Community Center claiming she was fired from her bookkeeping job because she was an evangelical Christian. (The center said it was to save money.) The judge dismissed her case in part because of the results of his own Google search on religious community centers.

If a judge taps into search engines from his chambers and finds results that favor one party in a lawsuit, the other attorney can't offer a rebuttal.

• An Ohio 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."

• Leon Carmichael set up a Web site to discuss drug-related charges brought against him by federal prosecutors. The judge thought Carmichael's site was not entirely legitimate--Drug Enforcement Administration agents tried to shut it down--because it didn't rank high in Google searches. "This means that it is less likely that a person previously unknown to Carmichael with information about his case will see the site," U.S. District Judge Myron Thompson wrote.

Such searches can be problematic. If a judge taps into search engines from his chambers and finds results that favor one party in a lawsuit, the other attorney can't offer a rebuttal. And it's hardly clear how the total number of hits for "secondhand smoke" or "community center" should be interpreted.

Contrary to Thompson's opinion, a Web site that's invisible through searches may still be influential if its address is passed around through word of mouth. And what if a Web site is dropped by Google for engaging in dubious optimization techniques, or if its owner has intentionally blocked search engines from visiting it? Few judges will know to check for a robots.txt file.

That's why 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."

We'll never know if DeLay was thinking through the courts-and-Net topic at this level of detail, or whether it was simply another front in the ongoing partisan spat over judicial activism and confirmations.

Democrats were quick to paint DeLay's remarks as falling into the second category. "Has the Internet become the Devil's workshop?" said Sen. Dick Durbin of Illinois. "Is it some infernal machine now that needs to be avoided by all right-thinking Americans?"

Of course not. But while DeLay may not have been very careful in how he said it, right-thinking Democrats should admit that his half-baked remarks may have half a point.