Most of the coverage of Oracle's intellectual-property lawsuit against Google over the Android OS has centered on what the outcome could mean for APIs (application programming interface) and the staggering amount of money Oracle wants in damages (it's now up to $9.3 billion).
Now, as a second trial in the case is set to begin, the judge overseeing it has issued an order that puts the question of Internet privacy and social media into the spotlight, as the Wall Street Journal reports:
The judge has given lawyers a choice: either agree not to conduct Internet and social media research about jurors until the trial is over or be forced to disclose their online monitoring.
U.S. District Judge William Alsup’s order, which was reported by The Recorder and The Hollywood Reporter, is a fascinating read. Here’s how it starts out:
Trial judges have such respect for juries — reverential respect would not be too strong to say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.
In this high-profile copyright action, both sides requested that the Court require the [jury pool] to complete a two-page jury questionnaire. One side then wanted a full extra day to digest the answers, and the other side wanted two full extra days, all before beginning voir dire. Wondering about the delay allocated to reviewing two pages, the judge eventually realized that counsel wanted the names and residences from the questionnaire so that, during the delay, their teams could scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data on the venire. Upon inquiry, counsel admitted this.
Lawyers could conceivably use this information to seek out disqualifying information on potential jurors. But Alsup's order notes it could also be used to make "improper personal appeals to particular jurors":
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. The same could be done with a favorite quote or with any number of other juror attitudes on free trade, innovation, politics, or history.
Alsup isn't banning all social media research but is calling for Oracle and Google to accept a compromise:
The Court calls upon them to voluntarily consent to a ban against Internet research on the venire or our jury until the trial is over. ... At the outset of jury selection, each side shall inform the [jury pool] 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 [jury pool] will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish. The venire persons will also be given the normal admonition that they cannot do any research about the case, the parties, or the lawyers and that they cannot speak to anyone about the case, including by making any social media postings about it.
Analysis: Judge's Order Provides Ample Fodder for the Online Privacy Debate
Alsup's entire order goes into much more detail and is well worth a read. You can find a link to it right here [Credit: WSJ].
It certainly has Constellation Research VP and principal analyst Steve Wilson thinking.
"A useful comment might be to encourage people not to jump to conclusions," Wilson says. "What's the best way to think about this sort of development? Law and sociology is full of the word 'reasonable'. The threshold of what is 'reasonably' apparent about someone has changed, thanks to information technology."
"There is an argument that peoples' expectations of privacy have also shifted," Wilson adds. "I just don't know about that though. I think it's too early to tell. Certainly people can be surprised how much of their personal information is discoverable. I would think that Big Data processes could certainly extrapolate a person's political views from their social media activity, just as Target can tell if a woman is pregnant from the household products she buys."
However, "it will become a whole lot more subtle than looking for explicit outbursts or political expressions," he adds. "How accurate will predictions of attitudes be? You'd hope for controlled scientific studies. Or else we will just end up with 'astrological charts by big data.'"
Moreover, "remember the principle that personal information extracted by big data has the same privacy implications as that collected overtly by questionnaires and interviews. You just cannot go around working out someone's attitudes from their data trails, especially without them knowing it, without some accountability for that."
(Read more about Wilson's research into the privacy implications of big data right here.)
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