September 2, 2014

When Jury met Google…

Image representing Google as depicted in Crunc...
Image via CrunchBase

GOOGLE + JURIES = PROBLEMS?

Under the constitution, an “impartial jury” is guaranteed in criminal trials. However, with the advent of the internet, Google, and online social media, impartiality is becoming more questionable, and jurors are taking over their role as fact finders out of the court room and directly to online searches.

And it has observers wondering if an “impartial jury” is even possible, anymore. With technology continually evolving, the justice system will need to find ways to compensate, argues Caren Myers  Morrison, an assistant professor at Georgia State University College of Law in an article titled Can the Jury Trial Survive Google? published the ABA’s Criminal Justice Winter 2011 issue.

Today, most jurors have access to news stories, television segments, blogs “opinions,” criminal records databases, social network pages, and general research tools such as Wikipedia and Google at their fingertips. And the have not been shy about availing themselves of these resources.

In addition to steps to compensate for heightened juror access to information outside of the trial, Morrison suggests that “we may need to reevaluate the jury’s role in a wider sense.”

I’ve heard it joked that people on jury duty are not the brightest individuals, as evidenced that if they were they would have gotten out of jury duty in the first place. John Cusack starred with Gene Hackman and Dustin Hoffman in the movie version of John Grisham‘s novel Runaway Jury, in which Cusack played man who got himself placed on jury duty, where he then manipulated the other members of the jury to get revenge on an unscrupulous gun manufacturer. It featured black and white caricatures, but the lesson was real–juries can be manipulated by sophisticated individuals using expert knowledge of the facts and of the law.

In Grisham’s world, the good guys won, but in the real world, it isn’t nearly so black and white. The rules of evidence are designed to keep a tight lid on attorneys in court, to assure a level playing field, as best as possible, with the power of the state and prosecutor on one side and the rights of the defendant, presumed innocent until proven guilty, on the other. As jurors are able to begin accessing information outside of those guarded limits, “impartiality” becomes an open question.

Unfortunately, that doesn’t mean that jurors will always feel like they are getting enough information to do their job competently. As quoted by Morrison:

“The legal system is not designed to discover truth, but rather to reward whichever party presents the most convincing argument,” observed one former juror. “As someone who has sat on several juries, in each case myself and the other jurors felt frustrated by the lack of key information that would help us feel comfortable that we had made the right decision. We also felt deeply frustrated at our inability to fill those gaps in our knowledge.”

So, with that frustration in hand, jurors head home at night, open their laptops, and start Googling. That is, when they haven’t already started searching from their mobile phones while still in court.

WHAT ARE THE PROBLEMS?

Morrison lists several problems for the impartial jury due to easy access to the internet.

  • First, juror blog postings, status updates, and tweets “might chill robust discussion inside the jury room.” Why speak up if your fellow jurors are going to lam-blast you online?
  • Second, jurors use the internet to ask for opinions. It’s a violation of the jurors oath, even if it does occur only rarely.
  • Third, messages from inside the juror “black box” dispels and “subvert[s] the gravity of the process.”
Another major problem, one well demonstrated by “Runaway Jury,” is improper contacts with jurors. Facebook, MySpace, eHarmony, and Twitter all present ways that jurors can be contacted, and can contact, defendants, witnesses, and attorneys associated with the case, to say nothing of the media.
The more people are linked through a complex of contacts, listservs, dating databases, and friend pages, the more these chance encounters become likely, causing not only the embarrassment of seeing trial participants in unexpected contexts, but also possible prejudice to the parties. Who could take an expert seriously after learning that he is looking for “that special someone”?
RECOMMENDATIONS
There are several suggestions that Morrison presents to these problems, though she states that their efficacy is still open:
  1. Jury Instructions: specifically advise jurors that they are, as the Federal Judicial Conference has modeled, not to access the Internet using their telephone, cell phone, smart phone, iPhone, Blackberry or computer, nor to chat about the case in chat rooms, blogs, or websites such as Facebook, My Space, LinkedIn, YouTube or Twitter…etc., etc., etc.
  2. Explain why. If jurors understand, they are more likely to listen and heed the instructions.
  3. For extremely short trials, confiscate electronic devices as jurors enter the courthouse. However, this won’t help in any case that last more than one day.
  4. Allow jurors to take notes, ask questions of the witnesses, and request clarification. Questions can be written and submitted to the judge to ask, and they can help jurors feel more able to get access to the information they need to make a judgment.
  5. Zero tolerance for juror contacts. The threat of fine or contempt of court should be a fair and sufficient method for keeping jurors from making inappropriate contacts during trial.
Morrison’s article “Can the Jury Trial Survive Google?” is a fascinating look at the problems juries face in the age of Google. It shares a wealth of anecdotes and insights. It’s not available online yet, but should be in the next couple months. Morrison also has an excellent paper on the topic here.

Google more considerate of your privacy?

A few days ago, I noted that it’s a little scary how much information Google carries about its users online activities.  Google hosts your email, calendars, web searches, documents, and maps (not to mention pictures of your street).  And health data, too.

But at least they’re conscientious about how that data is accessed. Eventually…like four months later than they should.  Gawker says that

David Barksdale, a 27-year-old former Google engineer, repeatedly took advantage of his position as a member of an elite technical group at the company to access users’ accounts, violating the privacy of at least four minors during his employment, we’ve learned. Barksdale met the kids through a technology group in the Seattle area while working as a Site Reliability Engineer at Google’s Kirkland, Wash. office. He was fired in July 2010 after his actions were reported to the company.

It took Google four months to catch on.  This from the company that has access to more data than any single entity in history, short of the Almighty Himself.

And what exactly was the creep doing?  Amongst other things, he was spying and taunting the teens.

In an incident this spring involving a 15-year-old boy who he’d befriended, Barksdale tapped into call logs from Google Voice, Google’s Internet phone service, after the boy refused to tell him the name of his new girlfriend, according to our source. After accessing the kid’s account to retrieve her name and phone number, Barksdale then taunted the boy and threatened to call her.

When Google executive engineer was alerted to the activities, he thanked the person and told them he would take care of it, but it wasn’t until later, when follow up contact was made, that Barksdale was actually fired.  Even then, Google has not been clear about the extent to which Barksdale abused his access to user information, though they did say this in their own defense:

“We dismissed David Barksdale for breaking Google’s strict internal privacy policies. We carefully control the number of employees who have access to our systems, and we regularly upgrade our security controls–for example, we are significantly increasing the amount of time we spend auditing our logs to ensure those controls are effective. That said, a limited number of people will always need to access these systems if we are to operate them properly–which is why we take any breach so seriously.”

Bill Coughran, Senior Vice President, Engineering, Google

Let’s hope they are upgrading those “strict internal privacy policies” sufficiently. They obviously caught on to what Barksdale was doing, but only after they were alerted by the parents of the teens he was spying on. Did he do more? Were others affected that never came forward?

It’s unclear how many accounts Barksdale inappropriately accessed while employed by Google, or if the company has conducted a thorough investigation into possible privacy abuses by other employees. (Calls to Google for comment were not returned.) It’s also not clear what measures are in place to prevent Google staffers from snooping on users.

The Barksdale case comes as Google has attempted to address concerns about privacy by encrypting Gmail to protect messages from hackers, and bysimplifying its privacy policies to make them more comprehensible to users. Ironically, just last week Google launched its Family Safety Center, dedicated to helping parents keep their children safe on the Internet. But as this disturbing incident suggests, the biggest threat to kids’ privacy might be Google employees themselves.

(italics added for emphasis)

The question I want to know is: why aren’t criminal charges being filed? And was there a settlement to the individuals spied on?

This isn’t the only employee that Google has fired for privacy violations. TechCrunch reports that it’s actually the second. Getting fired is one thing; criminal charges is another and would be a far greater deterrent to others violating that privacy, both at Google and Facebook, to say nothing of other companies that watch your online actions.

(Thanks to Gawker and TechCrunch)

Big Brother, and Google, is watching you…

Google + Orwell
Image by Inmigrante a media jornada via Flickr

I thought it was scary how much information Facebook had on me.  Yeah, right.

Next to Google, Facebook is just almost benign.  Almost.

Eric Schmidt, the CEO of Google (which does email, calendars, documents, searches, maps, directions, YouTube,  blogs, and so on), has his eye on you:

“Ultimately, search is not just the web but literally all of your information – your email, the things you care about, with your permission – this is personal search, for you and only for you.”

We can suggest what you should do next, what you care about. Imagine: We know where you are, we know what you like.

“A near-term future in which you don’t forget anything, because the computer remembers. You’re never lost.”

Yeah, a little scary.  What if I want to get lost? Go off the grid, as it were? Remember, this is the same guy that recommended that people change their name if they wanted to escape their online activities.

(Thanks to Josh Blackman for the tip, and for a great blog, too.)