When the prosecution collects evidence for a case, a defendant’s internet search history is almost surely on the list of things to review. It’s wise to talk to your clients about their Google searches up front.
This article will help you approach the subject and answer your clients’ most common questions.
If you follow legal news, you’ve likely heard of the Massachusetts man who was accused of murder after his search history included some colorful phrases about hiding evidence.
Many people rolled their eyes and wondered why the man didn’t delete his search history.
That’s a valid question. To give you a more detailed answer, we’ll take a closer look at how Google and other search engines work.
The truth is that “Googling” information has become so ubiquitous with modern life that the name of a company — Google — has become a verb. Nearly 85% of all internet searches are now done via Google.
Think about how often you use Google searches yourself. You might have even found this article in a Google search, and you surely use Google to research cases, find new restaurants to try, check the definition of uncommon words, or even resolve friendly arguments over random trivia.
Industry experts tell us that on average, Google processes nearly 100,000 internet searches per second.
Given that so much information gathering and dissemination happens from one place, it’s no wonder that Google searches have become a hotbed for obtaining evidence.
In this article, we’ll take a look at some of the issues surrounding the use of Google searches as evidence, from how your searches are stored and recovered to how they become usable in a court of law.
How long are Google searches stored?
According to Google, “[y]our Search history is saved to your Google Account as part of your Web & App Activity, along with activity from other Google services.” Google will perform an “auto-delete” of your search history every three, 18, or 36 months, depending on which setting you choose.
You can also perform interim deletions if you so choose.
That said, just because a search is deleted doesn’t mean it is actually gone. It’s just not easily accessible from your browser anymore.
In fact, there are dozens of tools available on the internet that are specifically aimed at recovering your deleted search files. Moreover, police and other forensic data experts have more sophisticated ways to recover data (like search histories) that have been deleted from your phone or other devices.
What if you use an “incognito” search?
As some people know, Google also offers an “incognito” mode.
Google support tells us that this mode can be used, for example, “to shop online for a birthday gift for a family member who shares your device. If you don’t sign in to your Google account, your shopping activity will not appear in your Chrome browsing activity and won’t be saved to your Google Account.”
That sounds like a useful feature, doesn’t it?
If you read the fine print, however, you’ll see that even incognito searches aren’t safe from prying eyes. They do not, for instance, “[p]revent your activity or location from being visible to the websites you visit, your school, employer, or your Internet Service Provider.”
So if all of this search information is ultimately saved by Google, your employer, your Internet Service Provider, etc., can it be used against you in court? Is it discoverable?
Let’s look into those issues.
Employers can monitor your Google searches
Before we even get to the discoverability of a person’s Google searches, let’s take a look at one area of the law where formal discovery isn’t even necessary: Employment Law.
For the most part, your employer has the right to monitor your internet browsing history, especially if you’re using a computer supplied by that employer during business hours.
It’s not hard to imagine how those searches might later be used against you in court.
Let’s say, for example, that you sued your employer for wrongful termination, claiming that they fired you due to age discrimination. After reviewing the Google search history on your work computer, though, your employer found the following searches:
- How to use age-related fatigue to your advantage in the workplace
- How to make your employer give you paid days off when you haven’t earned them
- How to slack off at work without anyone blaming you
You better believe those searches would be used, probably quite effectively, in the employer’s defense to your lawsuit. After all, the searches were legally obtained and are highly relevant to the issue at hand.
That brings us to the broader issue of the discoverability of browser searches in court cases generally. It all has to do with relevancy.
Browser history must be relevant
Can we be honest here for a second?
Almost all of us use the internet nearly all the time. We do searches on our phones, searches on our computers, and, heck, we can even do searches from airplanes these days.
For many people, a full analysis of their internet search history would be embarrassing at the very least.
Fortunately, like all evidence, evidence about your Google search history must be relevant in order for it to be discoverable or admissible in court.
For example, if you’ve sued a national grocery chain for negligence after slipping in a puddle at one of their stores, they’re not going to be able to discredit you by using evidence that you searched Google for “do clowns have constitutional rights?”
Why?
Because that search isn’t relevant to your negligence case. Is it embarrassing? Sure. But, fortunately, it’s not related to anything in the case. Consequently, a court is very unlikely to allow your opponent to seek discovery on that kind of search or to admit that search into evidence at trial.
By contrast, if the grocery chain sought evidence that you did searches along the lines of “how to injure yourself in a public place,” that information would undoubtedly be relevant, discoverable, and admissible.
Make sense?
Keep all of this in mind as you’re advising clients (and yourself) about what to do — and what not to do — when it comes to Google searches.
Ultimately, if your search is going to make you look bad in court, it’s probably best to skip it. Ask if your client has already searched for any topics that might be relevant so that you can adequately prepare, too.
