What146;s obscene? Google could have an answer

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 8220;orgy8221; than for 8220;apple pie8221; or 8220;watermelon8221;. 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 community8217;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 prosecution8217;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 sex8212; definitions that are based on 8220;contemporary standards8221;.

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.