In a big copyright trial, a federal judge confronts a privacy dilemma.
When it comes to entrusting personal data to digital services, one can choose to see the tech companies that have benefited from the rise of devices and apps in different lights. These companies are perhaps guardians. Witness the way that Apple is fighting the FBI’s attempt to unlock an iPhone. These companies are also potentially perpetrators, willing to pierce user privacy in the event it serves their own self interests.
On Friday, in a clash of two tech titans, U.S. District Judge William Alsup prepared for the possibility of the latter. Oracle is suing Google for violating the copyright on its Java API code. The dispute is headed to trial soon, but the federal judge worries that the parties will scrub Facebook, Twitter, LinkedIn and other internet sites to extract personal data.
The imagination runs rampant.
“The very name of the defendant — Google — brings to mind Internet searches,” writs Alsup in an extraordinary order. “On their own, prospective jurors are likely to wonder whether Google will be mining the histories of Internet searches by the venire persons to determine their interests in politics, careers, hobbies, dating, shopping, travel, or other intimate facts. Although Google has assured the Court that it has no intention to review such search histories, our venire will not know this (unless told) and may speculate.”
What would the parties do with such information? Alsup speculates.
“For example, if a search found that a juror’s favorite book is To Kill A Mockingbird, it wouldn’t be hard for counsel to construct a copyright jury argument (or a line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror,” he writes. ” The same could be done with a favorite quote or with any number of other juror attitudes on free trade, innovation, politics, or history.”
The possibility that a juror, say, might be a Star Trek fan has caused quite a dilemma for the judge. During voir dire — the process by which jurors get selected — a two-page jury questionnaire was first contemplated. Both Oracle and Google (and their jury consultants) wanted a couple of days to digest the answers. The judge was suspicious, asking the attorneys whether they intended to use social media to investigate those jurors. The parties admitted this. Out went the questionnaire, but a discussion ensued about the role of Internet investigation in the trial process.
Naturally, Alsup doesn’t want jurors doing their own research to find out about Oracle v. Google nor does he want the lawyers using research to frame “improper personal appeals to particular jurors.” He also speaks about the privacy of the jury. “They are not celebrities or public figures,” he writes. “Their privacy matters.”
Alsup says he considered an outright ban on researching jurors, but is reluctant. “A main problem in doing so, however, is that the lawyers would then be precluded from learning information readily available to the press and every member of the public in the gallery,” he notes.
So he’s got another solution. Either Oracle and Google voluntarily consent to a ban, or they will have to submit to the following procedure:
“At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway… The venire persons will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish.”
Alsup goes on to write that “until the trial is over, each side will be permitted to view online whatever it told the venire it would review — but nothing more.” He adds there will be no personal appeals to any jurors. “This prohibition bars witness examinations or jury arguments (or opening statements) exploiting information learned about a juror via searches, such as, without limitation, favorite books, texts, verses, songs, or analogies to likes or dislikes expressed on the Internet.”
Find the full order below. It’s worth reading. The judge notes that there’s been case law discussing the problems of jurors using social media and doing Internet searches, but “precious few decisions addressing our immediate problem, namely, whether counsel should be allowed to conduct Internet and social media research about prospective and empaneled jurors.”
But this is a battle between two tech companies that have access to far more personal information than most litigants. As digital privacy becomes a bigger and bigger issue, it is quite something. Attorneys for Oracle and Google have been told to inform the judge by the end of the month whether they will consent to a ban against Internet research.