The specter of juror privacy in their Facebook, Twitter and LinkedIn posts has raised its head in the already controversial copyright case between Google and Oracle over rights to Java programming tools.
U.S. District Judge William Alsup took an extraordinary step Friday to protect the privacy of prospective jurors from the mining by lawyers of the jurors’ personal likes, dislikes, politics, religion, relationships, friends, and photos via social media.
His order breaks new ground in the area of juror privacy and its protection, and it creates a method, that if successful may be copied, or it could fall flat as simply a failed experiment in corralling personal data that is already out in the online world.
The Copyright Dispute
The case goes back to 2010 when Oracle sued Google claiming it had copyrights to Java Application Programming Interfaces (APIs). These are the protocols and tools that allow software developers to write programs for the vast array of “apps” available online.
It accused Google of using Java source code to operate Google’s Android phones and thus infringe Oracle’s copyrights. Sun Microsystems created the Java APIs and in 2010 Oracle closed a $5.6 billion deal to acquire Sun.
In 2012, Alsup ruled that APIs were not subject to copyright but were simply utilitarian tools. Oracle appealed and in 2013, over opposition from many computer science experts, the Federal Circuit overturned Alsup. It found Java APIs copyrightable. The U.S. Supreme Court refused to take up the case in in 2015, sending it back for a copyright trial before Alsup.
As jury selection approached, neither side in the case alerted Alsup that it planned to extract personal data about the jury panel. When he quizzed lawyers about why they needed extra days to review a simple two-page jury questionnaire he realized their legal teams planned to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data” on jurors. Both Oracle and Google finally admitted it.
But this was not just for jury selection purposes, both sides also planned to continue the monitoring during the trial to detect whether jurors made improper posts to friends or commented on the trial in the face of traditional juror warnings not to talk about cases.
This launched a discussion on the appropriateness of such prying and the “unfairness in allowing the lawyers to do to the [prospective jurors] what the [they] cannot do to the lawyers.” Alsup worried about the likely “corrosive effect on fidelity to the no-search admonition” given to jurors.
He also expressed concern that lawyers would use what they learn to play on the sympathies of particular jurors, having garnered enough personal details.
Google was willing to accept an outright ban on data mining of the jury pool, but only if Oracle also agreed. Oracle refused.
This was no small issue in such a hotly contested case. Alsup had earlier uncovered that both sides had hired online commentators who promoted Oracle’s and Google’s respective litigation viewpoints on blogs and other web sites, while purporting to be independent. Commentary included claims to the national policy implications of a trial’s outcome.
Rather than impose a ban on juror background searches, Alsup gave both sides a choice. Either both sides would tell the jury pool at the outset of selection that they agreed to a ban on internet research about them, or if they would have to disclose exactly what the lawyers, jury consultants or the companies planned to investigate and monitor during the trial.
Not only would they have to tell jurors what social media accounts would be searched, but the extent of the searches, including any monitoring of jurors while the trial was underway. The lawyers can’t blame the other side for instigating the practice or suggest the judge approved the intrusion, he said.
Jurors will be given an opportunity to raise their online privacy settings, if they wish, he said.
But he didn’t stop there. If the two sides monitor jurors during trial they must keep a record of when and what they monitored and report any suspected juror misconduct, no matter who it favors. If any misconduct turns up, the judge may then look at the logs of both sides to determine if they were making timely reports.
And Alsup was adamant that lawyers could not use material garnered from any search to make personal appeals to particular juror’s likes or dislikes. The lawyers may not exploit information about favorite books, texts, verses, songs when making arguments in an effort to curry favor with a juror, he said.
Alsup’s chary attitude to their plans comes at a time when he points out “there are precious few decisions addressing our immediate problem, namely, whether counsel should be allowed to conduct internet and social media research about prospective and empaneled jurors.”
The American Bar Association has said it is ethical to conduct Internet searches of prospective jurors, including passive review of social media. But the ABA as forbidden as improper “ex parte communication” if lawyers reach out with a “friend request” on Facebook, “follow” a Twitter user or seek to “connect” on LinkedIn with potential jurors.
California has no rule on the ethical scope of Internet research on jurors, nor has the State Bar offered its opinion, he said.
While using detailed background data to play to a juror raised Alsup’s hackles, the companies’ concern about jurors improperly discussing the trial on the Internet has some historical merit. (See my earlier story: “Jurors Gone Wild,” California Lawyer Magazine April 2011.)
In a 2009 murder case in Sacramento, a juror mused on his blog, “The Misanthrope,” about the quality of the lawyers, complained about the length of the 19-day trial and promised his blog readers he volunteered to be foreman to “expedite matters.”
During deliberations he used his cell phone camera to photograph the murder weapon – a 15-inch saw-toothed knife – and posted it on his blog. Jurors convicted the defendant of murder but when the judge learned of the foreman’s misconduct he held the man in contempt, but failed to punish him.
The Second District Court of Appeal in Sacramento ultimately upheld the murder conviction in an unpublished opinion, (People v. Ortiz, 2009 WL3211030.)
Alsup ordered both sides to court March 31 at noon to tell him whether they consent to a ban on Internet research on the jury pool until the trial is over.
What he didn’t say was what the consequences might be if either side violates the terms of his Internet order in this potentially Billion dollar case.
Case: Oracle America Inc. v. Google Inc., No. 10-3561
Order: Docket #1573