The Wall Street Journal generated rounds of debate on the web with its recent discussion on how US attorneys are increasingly using Facebook and other forms of social media to help select jurors for trial. Armed with a laptop, Google, and a potential juror’s vitals, prosecutors and defenders can scour the web looking for information that will give them some insight into how that person will vote after the trial. According to WSJ, a district attorney in Texas even gave all his prosecutors iPads to allow them to internet-stalk potential jurors more easily in court. Fox News, The Atlantic, and many other sources have picked up the story. All the media buzz on social media influencing the justice system is good – we need to pay attention to how our courts are affected by the arrival of the age of digital information. Yet I’m a little stunned that use of Facebook for jury selection is so surprising to some. You think lawyers are getting invasive with online data now? Wait until you see what’s coming in the years ahead.
To give you an understanding of what’s causing all the hubbub, let me recap the Wall Street Journal story. From Oregon to New Jersey, attorneys across the US are using internet searches to influence who they select for a jury. WSJ describes how one woman was eliminated to sit in a San Francisco trial because her online comments made her seem too opinionated. Armando Villalobos, the DA in Brownsville, Texas, not only gave his lawyers iPads, he’s toying with the idea of offering jurors free WiFi in courts if they make his office a Facebook ‘friend’ (to grant his attorneys better access to their information). Josh Marquis, a DA in Oregon, used Facebook to help him select jurors for a death penalty trial! New Jersey appellate courts have upheld the practice in recent decisions. So on and so on. WSJ provides other examples of how this technique is expanding to become fairly common among US lawyers. It would be a chilling trend if it wasn’t so predictable.
For years we’ve seen reports of employers using Facebook to vet potential hires. Almost from the beginning social media users have leveraged online comments and profiles to choose who to date and who to pursue as a friend. We even have the term ‘Google stalk‘ to cover this kind of data mining. Of course lawyers are going to start using social networks to choose jurors – that online information is now part of our public identity. Why wouldn’t they use it?
What’s far more interesting to me is how our digital lives will increase their influence on our legal system. We’ve already discussed how our internet browsing history can be used as evidence in court, not to select jurors but to help convict and sentence defendants! Massive state-sponsored projects, like Indect in the EU, are being created to sift through online activity in order to find terrorists or other criminals. What do you get when you combine those two trends? A legal system in which your digital behavior is partially (completely?) open to scrutiny during criminal and civil actions.
Again, this shouldn’t surprise us. If you are accused of killing someone, what questions do detectives ask? Did Aaron make threatening statements about this person in the past? Did he seem anxious or otherwise emotionally tense on the day of the murder? The only difference is that instead of asking these questions to witnesses, friends, and family, the authorities are asking the internet.
And the internet never forgets.
As we move forward into the digital age we probably aren’t going to be able to resist the use of online information in legal cases. The data is out there. People can see it. Lawyers will use it. Sure, we can be more careful of what we share online, and I certainly think we should be, but part of participating in the note-tossing-in-the-back-of-class antics that is the internet is understanding that everything you say is in a public forum. The security of your anonymity is directly proportional to the apathy of the government agency (or private individual) interested in finding out who you are. Get the wrong people interested (FBI or 4Chan, take your pick) and you can be found.
If we can’t resist the spread of information, we are likely to adapt our own values to match it. We’ve talked often about how social mores about privacy are changing as new generations are raised with more information disseminating technologies. What you’re comfortable sharing changes when you spend your formative years on Facebook. Likewise, as we start increasingly using online activity as evidence in court we will also increasingly have jurors who are familiar with and spend much of their own time online. Your peers will presumably share some, but not all, of your assumptions about how relevant that activity is to your life offline.
The bigger concern is perhaps how courts (or any institutions) are going to handle the massive floods of data that are rushing towards us. You think that lawyers have more to work with now that they surf social networking sites. Imagine the data overload they will face when people start lifelogging, tracking their property through the Internet of Things, and tracking their health through 24 hour monitoring devices. We’ve discussed how brain scans and other mental measurements could drastically affect the way the legal system perceives our criminal (and civil) actions. Think of the data management, not to mention moral puzzles, courts will face when every single detail about a person’s life is available to review in a case. We’ll know what someone was saying on their journal, how fast their heart was beating, how often they had bought new shoes, and what kind of brain chemistry they are inclined to. Which of this data, if any, will be relevant in sentencing someone for shoplifting a pair of Nikes? Juries and judges could be faced with this sort of detail for every second of someone’s life. How do we decide what to focus on, how do we convince someone to convict or release a defendant when they are faced with more information than they can possibly understand or review on their own?
For centuries that’s a question that lawyers have had to answer in regards to evidence, and it’s only going to become a bigger part of their jobs as court rooms evolve.
Checking Facebook to pick jurors? Give me a break, guys. That’s the smallest drop in the bucket. The ocean’s knocking on the door waiting to be let in. Hope you’re ready to get wet.
[image credits: ChvhLR10 via WikiCommons (modified), Cameron County, Clatsop County, ]
[sources: Wall Street Journal]