LAWTECH GURU BLOG by Jeff Beard

Controversy Surrounds Judicial Use of Search Engines

Now here's something to make one think: CNet News reports that "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."

The sidebar sums it up: "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."

From the examples given, some judges are taking notice of the results of web search engines and the presence (or lack thereof) of numerous results has influenced decisions: "'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.'"

Indeed, while search engines are extremely useful for finding information on the web, I would be hesitant to conclude too much from the apparent "raw statistics" they generate. Just as "raw hits" in a web site log do not paint a good picture of the actual number of visits or pages served, the number of Google hits (or lack thereof) are not precise. For one, no search engine can index the entire web, especially since a chunk of it is still hidden in proprietary databases served up in dynamic just-in-time "active server page" (.asp) or similar web pages. Thus each search engine takes its own unique "photograph" or map of the web, akin to the example of ten blind men and the elephant. Each one cannot see the whole, so they report upon what they can sense of it.

For example, let's do a Google link search on lawtechguru.com. When I ran this search, Google listed 353 sites linking to me. Wow, that sounds pretty good, and I'd like to believe that. However, if you take the time and trouble to go through those results, you'll see that many of the links come from a lesser number of sites overall, including links from lawtechguru.com to itself. Perhaps a better tool for this purpose is the Technorati Cosmos search, which reported that I had 52 links from 31 sources when I ran it. Now Technorati.com is geared to tracking blogs, so it may not show the results of non-blog (i.e., traditional) web sites linking to me. I would estimate that the accurate answer is somewhere between Google's and Technorati's results, and this simple exercise demonstrates the dangers of taking raw aggregate search results at face value.

Another point to consider is that none of these measures tells me what my overall site traffic is, or what my relative recognition level is in the legal market. The results may seem to provide an indication to these latter points, but they don't answer these questions with any specificity. Thus one needs to clearly understand how the system works in order to draw informed conclusions.

My point here is that search engines are incredibly useful tools. They provide us with the bridges (links) to the underlying information available. But any good researcher needs to understand the limitations of such data, and to corroborate and confirm the information sought. Naturally, search engines like Google are fast and easy to use, so it's very easy to understand why so many people rely upon them to do so much. However, just because something is published on a web page doesn't mean that it's necessarily accurate -- from my perspective, it depends on the source and method of collection, among others. On the flip side, there is a tremendous amount of useful information at our fingertips on the web, and conventional wisdom makes it so compelling to use.

Probably the largest attraction among the judiciary is that search engines provide what appears to be a "common sense approach" to finding information. I've certainly seen opposing counsel come up with some novel spins on underlying facts, and it's definitely handy to have an independent means to confirm or debunk them. As a heavy user of search engines myself, I certainly don't wish to condemn them. But I have to admit that this is an area in our judicial system that is unclear at best, and subject to abuse at worst -- to use such results as a basis to justify a decision. The decision itself could be sound, but it's the means to the end that concerns me most. As a progressive and savvy technology user, I often seek ways to find new and compelling technology uses in the practice of law. However, the legal conservative in me would like to see that the more reasoned adversarial evidentiary process be upheld and augmented appropriately.

This is going to be a challenging issue for the courts to address. The more tech-savvy our judges become, the more they'll naturally want to use technology in carrying out their duties -- and they should. When used appropriately, it can increase efficiency and accuracy. The big question is under which circumstances is search engine use and reliance thereon justified?