[Commons-Law] What’s obscene? Google could have an answer

[Prashant Iyengar]

http://www.indianexpress.com/printerFriendly/327061.html

What's obscene? Google could have an answer

New York Times

Posted online: Wednesday, June 25, 2008 at 2235 hrs IST

Washington, June 24
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 defence in
an obscenity trial in Florida plans to use publicly accessible Google
search data to try to persuade jurors that their neighbours have
broader interests than they might have thought. In the trial of a
pornographic website operator, the defence 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 defence lawyer, Lawrence Walters, is arguing that the evidence
is sufficient to demonstrate that interest in the sexual subjects
exceeds that of more mainstream topics.

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.

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

Such cases are a relative rarity. 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.)

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 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, Douglas said, would be mail-order statistics,
because they show what people consume in private. But that information
is hard to obtain.