NYT
June 24, 2008
What’s Obscene? Google Could Have an Answer
By MATT RICHTEL

Judges and jurors who must decide whether sexually explicit material
is obscene are asked to use a local yardstick: does the material
violate community standards?

That is often a tricky question because there is no simple, concrete
way to gauge a community’s tastes and values.

The Internet may be changing that. In a novel approach, the defense in
an obscenity trial in Florida plans to use publicly accessible Google
search data to try to persuade jurors that their neighbors have
broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to
show that residents of Pensacola are more likely to use Google to
search for terms like “orgy” than for “apple pie” or “watermelon.” The
publicly accessible data is vague in that it does not specify how many
people are searching for the terms, just their relative popularity
over time. But the defense lawyer, Lawrence Walters, is arguing that
the evidence is sufficient to demonstrate that interest in the sexual
subjects exceeds that of more mainstream topics — and that by
extension, the sexual material distributed by his client is not
outside the norm.

It is not clear that the approach will succeed. The Florida state
prosecutor in the case, which is scheduled for trial July 1, said the
search data may not be relevant because the volume of Internet
searches is not necessarily an indication of, or proxy for, a
community’s values.

But the tactic is another example of the value of data collected by
Internet companies like Google, both from a commercial standpoint and
as a window into the thoughts, interests and desires of their users.

“Time and time again you’ll have jurors sitting on a jury panel who
will condemn material that they routinely consume in private,” said
Mr. Walters, the defense lawyer. Using the Internet data, “we can show
how people really think and feel and act in their own homes, which,
parenthetically, is where this material was intended to be viewed,” he
added.

Mr. Walters last week also served Google with a subpoena seeking more
specific search data, including the number of searches for certain
sexual topics done by local residents. A Google spokesman said the
company was reviewing the subpoena.

Mr. Walters is defending Clinton Raymond McCowen, who is facing
charges that he created and distributed obscene material through a Web
site based in Florida. The charges include racketeering and
prostitution, but Mr. Walters said the prosecution’s case
fundamentally relies on proving that the material on the site is
obscene.

Such cases are a relative rarity this decade. In the last eight years,
the Justice Department has brought roughly 15 obscenity cases that
have not involved child pornography, compared with 75 during the
Reagan and first Bush administrations, according to Jeffrey J.
Douglas, chairman emeritus of the First Amendment Lawyers Association.
(There have been hundreds involving child pornography.) Prosecutions
at the state level have followed a similar arc.

The question of what constitutes obscenity relies on a three-part test
established in a 1973 decision by the Supreme Court. Essential to the
test has been whether the material in question is patently offensive
or appeals to a prurient interest in sex — definitions that are based
on “contemporary community standards.”

Lawyers in obscenity cases have tried to demonstrate community
standards by, for example, showing the range of sexually explicit
magazines and movies available locally. A better barometer, Mr.
Douglas said, would be mail-order statistics, because they show what
people consume in private. But that information is hard to obtain.

“All you had to go on is what was available for public consumption,
and that was a very crude tool,” Mr. Douglas said. “The prospect of
having measurement of Internet traffic brings a more objective
component than we’ve ever seen before.”

In a federal obscenity case heard this month, Mr. Douglas defended
another Florida pornographer. In the trial, Mr. Douglas set up a
computer in the courtroom and did Internet searches for sexually
explicit terms to show the jury that there were millions of Web pages
discussing such material. He then searched for other topics, like the
University of Florida quarterback Tim Tebow, to demonstrate that there
were not nearly as many related Web sites.

The jury was evidently not swayed, as his client was convicted on all
counts.

The case Mr. Walters is defending takes the tactic to another level.
Rather than showing broad availability of sex-related Web sites, he is
trying to show both accessibility and interest in the material within
the jurisdiction of the First Circuit Court for Santa Rosa County,
where the trial is taking place.

The search data he is using is available through a service called
Google Trends (trends.google.com). It allows users to compare search
trends in a given area, showing, for instance, that residents of
Pensacola are more likely to search for sexual terms than some more
wholesome ones.

Mr. Walters chose Pensacola because it is the only city in the court’s
jurisdiction that is large enough to be singled out in the service’s
data.

“We tried to come up with comparison search terms that would embody
typical American values,” Mr. Walters said. “What is more American
than apple pie?” But according to the search service, he said, “people
are at least as interested in group sex and orgies as they are in
apple pie.”

The Google service does, however, show the relative strength of many
mainstream queries in Pensacola: “Nascar,” “surfing” and “Nintendo”
all beat “orgy.”

Chris Hansen, a staff lawyer for the national office of the American
Civil Liberties Union, called the tactic clever and novel, but said it
underscored the power of the Internet to reveal personal preferences —
something that raises concerns about the collection of personal
information.

“That’s why a lot of people are nervous about Google or Yahoo having
all this data,” he said.

One question is whether the judge in the case will admit the data as
evidence; it was given only in a deposition this month. Mr. Walters
said he was confident the information would be allowable given that
there has been a growing reliance on such data.

Russ Edgar, the Florida state prosecutor, said he was still assessing
whether he would try to block the search data’s use in court. He
declined to discuss the case’s specifics, but said that the popularity
of sex-related Web sites had no bearing on whether Mr. Edgar was in
violation of community standards.

“How many times you do something doesn’t necessarily speak to
standards and values,” he said.

What is interesting is that the Google data will reveal what amount to
"private" preferences rather than publically expressed values. So if
Google is used in this way then public hypocrisy will be undermined.
Is that a good thing or a bad thing?

Lance

Lance wrote:
> NYT
> June 24, 2008
> What�s Obscene? Google Could Have an Answer
> By MATT RICHTEL
>
> Judges and jurors who must decide whether sexually explicit material
> is obscene are asked to use a local yardstick: does the material
> violate community standards?
>
> That is often a tricky question because there is no simple, concrete
> way to gauge a community�s tastes and values.
>
> The Internet may be changing that. In a novel approach, the defense in
> an obscenity trial in Florida plans to use publicly accessible Google
> search data to try to persuade jurors that their neighbors have
> broader interests than they might have thought.
>
> In the trial of a pornographic Web site operator, the defense plans to
> show that residents of Pensacola are more likely to use Google to
> search for terms like �orgy� than for �apple pie� or �watermelon.� The
> publicly accessible data is vague in that it does not specify how many
> people are searching for the terms, just their relative popularity
> over time. But the defense lawyer, Lawrence Walters, is arguing that
> the evidence is sufficient to demonstrate that interest in the sexual
> subjects exceeds that of more mainstream topics � and that by
> extension, the sexual material distributed by his client is not
> outside the norm.
>
> It is not clear that the approach will succeed. The Florida state
> prosecutor in the case, which is scheduled for trial July 1, said the
> search data may not be relevant because the volume of Internet
> searches is not necessarily an indication of, or proxy for, a
> community�s values.
>
> But the tactic is another example of the value of data collected by
> Internet companies like Google, both from a commercial standpoint and
> as a window into the thoughts, interests and desires of their users.
>
> �Time and time again you�ll have jurors sitting on a jury panel who
> will condemn material that they routinely consume in private,� said
> Mr. Walters, the defense lawyer. Using the Internet data, �we can show
> how people really think and feel and act in their own homes, which,
> parenthetically, is where this material was intended to be viewed,� he
> added.
>
> Mr. Walters last week also served Google with a subpoena seeking more
> specific search data, including the number of searches for certain
> sexual topics done by local residents. A Google spokesman said the
> company was reviewing the subpoena.
>
> Mr. Walters is defending Clinton Raymond McCowen, who is facing
> charges that he created and distributed obscene material through a Web
> site based in Florida. The charges include racketeering and
> prostitution, but Mr. Walters said the prosecution�s case
> fundamentally relies on proving that the material on the site is
> obscene.
>
> Such cases are a relative rarity this decade. In the last eight years,
> the Justice Department has brought roughly 15 obscenity cases that
> have not involved child pornography, compared with 75 during the
> Reagan and first Bush administrations, according to Jeffrey J.
> Douglas, chairman emeritus of the First Amendment Lawyers Association.
> (There have been hundreds involving child pornography.) Prosecutions
> at the state level have followed a similar arc.
>
> The question of what constitutes obscenity relies on a three-part test
> established in a 1973 decision by the Supreme Court. Essential to the
> test has been whether the material in question is patently offensive
> or appeals to a prurient interest in sex � definitions that are based
> on �contemporary community standards.�
>
> Lawyers in obscenity cases have tried to demonstrate community
> standards by, for example, showing the range of sexually explicit
> magazines and movies available locally. A better barometer, Mr.
> Douglas said, would be mail-order statistics, because they show what
> people consume in private. But that information is hard to obtain.
>
> �All you had to go on is what was available for public consumption,
> and that was a very crude tool,� Mr. Douglas said. �The prospect of
> having measurement of Internet traffic brings a more objective
> component than we�ve ever seen before.�
>
> In a federal obscenity case heard this month, Mr. Douglas defended
> another Florida pornographer. In the trial, Mr. Douglas set up a
> computer in the courtroom and did Internet searches for sexually
> explicit terms to show the jury that there were millions of Web pages
> discussing such material. He then searched for other topics, like the
> University of Florida quarterback Tim Tebow, to demonstrate that there
> were not nearly as many related Web sites.
>
> The jury was evidently not swayed, as his client was convicted on all
> counts.
>
> The case Mr. Walters is defending takes the tactic to another level.
> Rather than showing broad availability of sex-related Web sites, he is
> trying to show both accessibility and interest in the material within
> the jurisdiction of the First Circuit Court for Santa Rosa County,
> where the trial is taking place.
>
> The search data he is using is available through a service called
> Google Trends (trends.google.com). It allows users to compare search
> trends in a given area, showing, for instance, that residents of
> Pensacola are more likely to search for sexual terms than some more
> wholesome ones.
>
> Mr. Walters chose Pensacola because it is the only city in the court�s
> jurisdiction that is large enough to be singled out in the service�s
> data.
>
> �We tried to come up with comparison search terms that would embody
> typical American values,� Mr. Walters said. �What is more American
> than apple pie?� But according to the search service, he said, �people
> are at least as interested in group sex and orgies as they are in
> apple pie.�
>
> The Google service does, however, show the relative strength of many
> mainstream queries in Pensacola: �Nascar,� �surfing� and �Nintendo�
> all beat �orgy.�
>
> Chris Hansen, a staff lawyer for the national office of the American
> Civil Liberties Union, called the tactic clever and novel, but said it
> underscored the power of the Internet to reveal personal preferences �
> something that raises concerns about the collection of personal
> information.
>
> �That�s why a lot of people are nervous about Google or Yahoo having
> all this data,� he said.
>
> One question is whether the judge in the case will admit the data as
> evidence; it was given only in a deposition this month. Mr. Walters
> said he was confident the information would be allowable given that
> there has been a growing reliance on such data.
>
> Russ Edgar, the Florida state prosecutor, said he was still assessing
> whether he would try to block the search data�s use in court. He
> declined to discuss the case�s specifics, but said that the popularity
> of sex-related Web sites had no bearing on whether Mr. Edgar was in
> violation of community standards.
>
> �How many times you do something doesn�t necessarily speak to
> standards and values,� he said.

Lance  wrote:
: What is interesting is that the Google data will reveal what amount to
: "private" preferences rather than publically expressed values. So if
: Google is used in this way then public hypocrisy will be undermined.
: Is that a good thing or a bad thing?

Depends on what it causes. If it causes the public to be less hypocritcal
about sexuality and other "taboos" then it will be a good thing. But if it
is such a big shock that it causes the public to be hit by a bout of
collective shame and guilt, pushing them into a new era of moral
conservatism then it will be a bad thing.

But what I'm more interested in right now is the relative levels of
searches they have unconvered!
Mark

Mark.Wri...@bristol.ac.uk wrote:
> Lance  wrote:
> : What is interesting is that the Google data will reveal what amount to
> : "private" preferences rather than publically expressed values. So if
> : Google is used in this way then public hypocrisy will be undermined.
> : Is that a good thing or a bad thing?
>
> Depends on what it causes. If it causes the public to be less hypocritcal
> about sexuality and other "taboos" then it will be a good thing. But if it
> is such a big shock that it causes the public to be hit by a bout of
> collective shame and guilt, pushing them into a new era of moral
> conservatism then it will be a bad thing.
>

It seems a bit like a firing squad - where one member of the squad is
given a rifle with blank ammunition, and the remainder don't know
whether they have the live or the blank ammunition. The Google results
are amalgamated so I suppose most people can pretend it is not them
who has done the searching.

There should be some atempt to filter out repeats from the same
person...

But that would start the process again leading to identification. And
then the whole community might be found to be guilty. I think apart
from new measures of public opinion new procedures for enforcing
conformity are also inherent in the data that Google keeps.

> But what I'm more interested in right now is the relative levels of
> searches they have unconvered!

OK.

> Mark