“What’s Obscene? Google Could Have an Answer” appears in tomorrow’s edition of The New York Times. The question is whether Internet data — specifically, Google search results — may be used at trial to gauge “community standards,” whatever that means. The article quotes two talented attorneys (disclaimer: I consider them friends), Larry Walters and Jeffrey Douglas. A glimpse:
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.
Another capable and talented attorney, Marc Randazza, has suggested this as well. So what’s all the fuss over the Internet? Better yet, what is the Internet? According to HowStuffWorks.com, it’s “a gigantic collection of millions of computers, all linked together on a computer network.” In that network “a home computer may be linked to the Internet using a phone-line modem, DSL or cable modem that talks to an Internet service provider (ISP).” These “ISPs then connect to larger ISPs, and the largest ISPs maintain fiber-optic ‘backbones’ for an entire nation or region. Backbones around the world are connected through fiber-optic lines, undersea cables or satellite links (see An Atlas of Cyberspaces for some interesting backbone maps). The end result: “every computer on the Internet is connected to every other computer on the Internet.” [Source]
It seems to me that, if the government takes a 21st-century view that a web of fiber-optic backbones, with their hallways of bouncing light pulses (when descrambled and assimilated by an end-user), can throw someone in jail depending on what story emerges on transmission to a consenting adult, then maybe that someone ought not lose the right to show that others, too, see the light. The World might not think it a prurient thing. Whatever that means.