Monday, March 28, 2016

Google and Oracle Must Disclose Mining of Jurors’ Social Media

Looks like I will have to write about data mining in detail one of these days.  I had written about it on my blog but not in much detail.  Now look what data mining can do in courts.  Those who read my posts and articles know that I always build onto past articles.  Let us enjoy this one and it goes for everyone who collects data and those who think they do not have to pay attention to data in this data frenzy age.
Martha Leah Nangalama – I have an IT and business background.
Internet research by jurors is a common concern for judges. In a high-stakes copyright fight between two Silicon Valley giants, it’s Internet research onjurors that’s drawing particular scrutiny from the bench.
As the long-running Oracle Corp. v. Google Inc. copyright dispute nears trial, the federal judge hearing the case is urging both sides to respect the privacy of jurors. 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.
Judge Alsup said one of the dangers of mining juror social media use is that lawyers will use the information to make “improper personal appeals.” He offers a timely example:
[I]f 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. Jury arguments may, of course, employ analogies and quotations, but it would be out of bounds to play up to a juror through such a calculated personal appeal, all the more so since the judge, having no access to the dossiers, couldn’t see what was really in play.
The judge, however, opted against imposing a total research ban, which he said would restrict lawyers from information that’s readily available to the press.
Here’s the compromise he came up with:
[T]he Court calls upon them to voluntarily consent to a ban against Internet research on the [jury pool] or our jury until the trial is over… In the absence of complete agreement on a ban, the following procedure will be used. 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. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too.
The American Bar Association has advised that lawyers are free to mine the social-media accounts of jurors, but they may not request access to an account that’s hidden behind a privacy wall. As evidenced by this case, judges can set their own restrictions.
Judge Alsup said Google had been willing to accept an outright jury research ban — if it applied equally to both sides — but Oracle wasn’t.
“Oracle shares the Court’s privacy concerns and appreciates the Court’s careful attention to the nuances of this issue,” lawyers for the company wrote in a March 17  brief to the court. “Neither Oracle nor anyone working with Oracle will log into any social media accounts to conduct searches on jurors or prospective jurors at any time,” the company’s brief said. It clarified its policy in another brief filed last week. Google also said it wouldn’t perform “logged-in searches of Facebook or other social media.”
Google has assured the court that it won’t be mining any juror’s Internet searches, the judge wrote. But he said that in a case in which “the very name of the defendant — Google — brings to mind Internet searches,” it’s “prudent to explain to” the jury pool that “neither party will resort to examining search histories on any search engine.”
The Wall Street Journal.

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