Julie Blackman, Ph.D. and Ellen Brickman, Ph.D.
Update: 4/5/2016 – Survey results added to the end.
This week — on March 31 — the attorneys in the Oracle America v. Google trial before Judge William Alsup in the Northern District of California will have to tell Judge Alsup whether they will forego conducting internet searches on prospective jurors. Judge Alsup has stopped short of forbidding such searches, although if the attorneys do search, Judge Alsup will inform the jurors about this in advance and give them a chance to change their privacy settings so as to prevent the attorneys from having access to information on their social media pages.
Also, Judge Alsup has said that if the attorneys decide to conduct searches, they may not make reference to anything they may have learned about the jurors in an effort to influence them. Seeing the jurors’ likes (e.g., favorite books or movies), for example, might prompt an attorney to use that information as part of a targeted influence attempt. Judge Alsup has forbidden this.
Should Judge Alsup inform the prospective jurors that internet searches are being conducted on them, it may be the first time that a judge has told prospective jurors about such searches. Judges have worried that telling jurors that they are being searched would make jurors less likely to follow the admonition that they not search for case-related information on the internet. Judge Alsup has recognized this and hopes that his promise to inform prospective jurors about the lawyers’ and consultants’ searches about them will chill the search, thereby obviating this problem.
So, we face a new wrinkle in the fabric that weaves together the courtroom and the internet. Judge Alsup’s decision and request of the attorneys – to agree “voluntarily” not to search for internet information on prospective jurors – beg these questions: How important are internet searches of prospective jurors? What do we get from these searches? And, is Judge Alsup right to think that jurors want their privacy protected?
At DOAR, Dr. Ellen Brickman has overseen internet searches of literally thousands of prospective jurors in cases across the country. [The 2012 NY City Bar Association opinion which says that not searching is akin to incompetence of counsel (and admonishes attorneys to be certain not to leave footprints behind) is mentioned by Judge Alsup, but only for the purpose of noting that searches are not unethical.] Most often, these searches are conducted during jury selection. Publically available sites and databases are searched and information is reviewed for relevance to the case at hand.
In court, Dr. Julie Blackman adds the internet-derived information to the picture being developed of each prospective juror based on their responses to voir dire questions in court. On rare occasions, discrepancies between what we have learned in the courtroom and information gleaned from the internet have appeared. And, these discrepancies are reported to the court. For example, in one case that involved environmental protection issues, an online search of a prospective juror revealed that she was the president of a nature conservancy group. Asked in court about any organizations to which she belonged, she had not mentioned this group. We reported the discrepancy to the judge who brought this juror to sidebar and without revealing the fact of the online search, asked the juror whether she belonged to any non-professional organizations or had any hobbies. (The juror had already reported on professional organizations.) Then, the juror mentioned the nature conservancy and her leadership position in it. In another example, we once found someone with the same name as a prospective juror who had passed a bad check in Ohio. The judge began her questioning of this juror by asking her if she had ever been arrested in Ohio. When the juror said she had not, the judge stopped questioning her.
Beyond the value of catching discrepancies, the greatest value of internet searching comes from being able to add details to broad information. Prospective jurors typically report their highest level of education; on the internet, we can learn what university they attended. Or, prospective jurors report their job title and employer but internet searches often reveal a wealth of information about exactly what they do. The other sort of information that we routinely find online that is typically unaddressed in the courtroom pertains to liens and declarations of bankruptcy – which can also be important, especially in the years since the 2008 collapse of the economy and particularly in financial cases.
Efforts to influence jurors based on information gleaned from internet searches, while possible, are typically avoided in favor of less surveillance-driven influence attempts. Even so, it is hard to know whether jurors would resent or appreciate attorneys who reckon with such personal preferences in efforts to communicate most effectively with them. Absent the ascription of “intrusiveness” to internet derived information, most people like to feel acknowledged.
When it first became possible to conduct internet searches on prospective jurors, we refused. We believed that an implicit promise existed between prospective jurors and those conducting voir dire and that that promise meant that all the information we were getting about jurors should come from questions asked in open court. Later, as the internet grew and as social media sites like Facebook flourished, we came to believe that the world had changed. We came to think that jurors’ expectations for privacy were low and that they were likely to be untroubled by the fact that others might have access to publically posted information about them. Judge Alsup suggested that people can privatize their Facebook posts, for example, to such an extent that they are the only ones who can see their posts, but even he acknowledged that virtually no one does this. People post information so that it might be seen. People even sign up for apps that allow others to track their locations at all times.
And so, with Judge Alsup’s decision, we are poised – should the attorneys decide they want to conduct online searches – to enter the next stage in the triangle relationship among the courtroom, jurors and the internet. If jurors know that they are being searched, will they indeed be less likely to heed the court’s admonition to stay off the internet? Or, will they understand the necessary asymmetry and continue to stay off (at least most of them most of the time)? Will jurors, given the opportunity to privatize their settings just in advance of voir dire, actually do so? How important will it be for them to withhold this information from attorneys or will it be alright with them to leave their privacy settings unchanged?
In 2003, we asked a Federal District Court Judge to tell the jurors not to go online and search for information about the case, which was a very high profile case with many internet hits available. She refused, saying, “I won’t do that. It would be like telling them not to put beans up their noses. If I don’t mention it, they’ll never think of it.” She was probably wrong about that in 2003.
Perhaps, Judge Alsup is wrong to imagine that jurors will feel that their privacy is being invaded. Perhaps, he is making a mistake by promising to tell jurors that attorneys are searching for internet-based information about them. Or, perhaps, his decision to tell jurors about the searches doesn’t matter – jurors may not mind the searches, nor may they then be more likely to break the rules on internet usage themselves. We just don’t know and neither does Judge Alsup.
Judge Alsup is trying to resist a rising tide – an ever more populated social media-internet – that could only have developed if the people who post personal information to the internet were seeking a higher level of attention from others, not trying to avoid it. Judge Alsup is about 70. Like so many in positions of authority (the authors of this article included), he did not grow up on the internet. He may be misperceiving the general public’s wish for privacy. He may be protecting an expectation of privacy that no longer exists in any real measure.
All those interested in the coming together of the courtroom and the internet should pay close attention to what happens in this trial in the Northern District of California, especially if the attorneys decide they want to conduct internet searches despite Judge Alsup’s efforts to make this choice unappealing. And, in the meantime, we invite your reactions:
Results of this two-question survey will be reported here after March 31, when the decision has been made.
We tallied up the votes from those who shared their opinions and predictions about what the lawyers and consultants would do in the face of Judge Alsup’s plan to tell prospective jurors about online searching about them – if the lawyers decided not to forego this searching. About 76% thought the lawyers and consultants should search; a slightly lower percentage – 67% — thought they would decide to search. On either measure, a strong majority believed that the attorneys would not forego searching despite Judge Alsup’s strong efforts to discourage them from doing so.
In real life, the lawyers for both Oracle America and Google agreed that they will not search for information about jurors either before or during the trial.