Perspective: Defending DeLay's Internet assault

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legislature, to the likely peril of judges, bailiffs and ordinary citizens called upon to do their civic duty." (Brown is the same Bush nominee who's embroiled in the current Senate confirmation flap.)

Other examples of judges using search engines in dubious ways:

• Linda LeBoon sued the Lancaster Jewish Community Center claiming she was fired from her bookkeeping job because she was an evangelical Christian. (The center said it was to save money.) The judge dismissed her case in part because of the results of his own Google search on religious community centers.

If a judge taps into search engines from his chambers and finds results that favor one party in a lawsuit, the other attorney can't offer a rebuttal.

• An Ohio judge who ordered a mother not to smoke near her 8-year-old daughter cited medical journals and a Google search that lists 60,000-plus links for "secondhand smoke" and 30,000-plus links for "secondhand smoke children."

• Leon Carmichael set up a Web site to discuss drug-related charges brought against him by federal prosecutors. The judge thought Carmichael's site was not entirely legitimate--Drug Enforcement Administration agents tried to shut it down--because it didn't rank high in Google searches. "This means that it is less likely that a person previously unknown to Carmichael with information about his case will see the site," U.S. District Judge Myron Thompson wrote.

Such searches can be problematic. If a judge taps into search engines from his chambers and finds results that favor one party in a lawsuit, the other attorney can't offer a rebuttal. And it's hardly clear how the total number of hits for "secondhand smoke" or "community center" should be interpreted.

Contrary to Thompson's opinion, a Web site that's invisible through searches may still be influential if its address is passed around through word of mouth. And what if a Web site is dropped by Google for engaging in dubious optimization techniques, or if its owner has intentionally blocked search engines from visiting it? Few judges will know to check for a robots.txt file.

That's why Rule 201 of the Federal Rules of Evidence says trial judges may take notice of public information only when they "resort to sources whose accuracy cannot reasonably be questioned."

We'll never know if DeLay was thinking through the courts-and-Net topic at this level of detail, or whether it was simply another front in the ongoing partisan spat over judicial activism and confirmations.

Democrats were quick to paint DeLay's remarks as falling into the second category. "Has the Internet become the Devil's workshop?" said Sen. Dick Durbin of Illinois. "Is it some infernal machine now that needs to be avoided by all right-thinking Americans?"

Of course not. But while DeLay may not have been very careful in how he said it, right-thinking Democrats should admit that his half-baked remarks may have half a point.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

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