Thursday, June 14, 2012

The Information Age—Scarier Than you Think

No question the internet has provided us far greater access than we could imagine 20 or 30 years ago. Want a recipe for Prime Rib? Google it. You can even find a video giving step-by-step audio-visual instructions. (By the way…I have used this method repeatedly and it works every time. Outstanding.) Need an unusual bolt for a 1978 refrigerator? You can find it (with instructions how to replace it), order it, and even have it delivered overnight if you are willing to pay enough.

We have answers to technological questions—“why does my computer keep crashing?” We find debates, and answers and practical hints on literally everything from aardvarks to zythepsary. (A brewery—make sure to work it into your vocabulary today.) However, there are two significant problems with this abundance of information:

1) Some of it is wrong. As we know, one can create a blog or website to justify just about anything--including the geocentric theory of the solar system, faked moon landing claims, and aliens building the pyramids. Now we may chuckle at the obviousness of websites being wrong, but lest we forget, we even require websites like snopes.com to tell us when website claims are wrong! Have you used Snopes.com? I have. So clearly it is not always evident what is correct or incorrect.

2) We don’t have the individual expertise to discern what is correct. I will use myself as an example. There are a few things in life I know very well. I am familiar with certain aspects of law. I am comfortable with many biblical claims. I am pretty familiar with running. This past weekend I had an opportunity to visit a horse show—I have never been. I don’t know what the judges were judging, what to look for, what each competition meant, why one person held the reins one way, and another held it another (because of the type of bit in the horses’ mouth, depending on the horses’ age.) I kept asking my friend, “Why are they doing that? What are they looking for? What is important here?” Luckily my friend is knowledgeable, and could inform me.

Without his expertise I wouldn’t even know what I should have known.

Likewise, I am not very educated when it comes to evolution. At times, I will see an anti-evolutionist claim, and be tempted to engage in debate. What is my first inclination? Why…to google the question, of course! A simple tactic: type in the question, start reading through the string of links, find one opposing your opponent’s claim, and copy-and-paste a response (giving proper citation, obviously.) Voila—instant response. However, as we all know, I am not really discerning whether the evolution claim is correct—I don’t know enough about the topic to make a determination! I am just looking for an opposing view.*

*I should note this is different than finding an opposing view and replying with, “I found this website here that claims differently—can you explain how you would respond to it?” That is legitimate inquiry.

Often I have made claims on a biblical questions, and been opposed. When I type in their response, in quotes, in google, I find precisely where they obtained the information, and find an inaccurate, incomplete and inadequate website. I realize the person didn’t have a clue how to respond, so they just “borrowed” from someone else, assuming it was accurate. When it was not.

O.K., none of this new to my readers as just by being here, you have been engaged on the internet long enough to know (and give your own countless examples) these two glaringly evident points. So what? Recognized common internet happenings; as ubiquitous as trolling, spam and porn.

For a moment, think about an issue extremely important to you. Imagine being involved where a governmental entity will make a decision on this issue. You present your position, the other side presents their own, and you counter. You engage in this arduous process over years, making numerous appearances, reviewing each position’s facts and claims; countering as best you can. Finally the day comes when a decision will be made…and the governmental entity says, “I googled the question and found a website.” A website never presented and given a chance to respond. A website that could be incorrect. A website helping make one of the most pivotal questions in your life. And you learn of it for the first time, in the decision being made!

This is happening in the United States Supreme Court. (Not to mention other appellate courts across the country.) You can download Supreme Court Fact Finding for free. The author reviewed decisions since 2000, looking for situations where the Court engaged in fact-finding outside of the briefs submitted. He found numerous instances where the court relied upon websites (indeed, Justice Breyer is extremely forthright in indicating his use of the internet, with citations) to support their particular positions.

Websites never mentioned, briefed, or responded to in any of the pleadings before the court. Not at the trial level, the Circuit level, or in any of the participant’s briefs. You have argued a case before the U.S. Supreme Court, and first learn it is relying upon (in part) a website you have never heard mentioned until the decision itself.

Our Judicial system is inherently designed to be adversarial—we expect and even demand an opposing view question the position. Our court rules are designed upon this foundation, giving guidance how we interact with the opposing side. Our rules of evidence anticipate the other side limiting what facts we present; the judge does not yell out, “Objection!”—it is opposing counsel’s obligation to do so. Our procedures are forged around and adversarial system—defendants are allowed to respond to plaintiffs; plaintiffs then rebut defendant’s claims.

We expect and anticipate the judges to not be informed about the topic. It is our job to present the evidence and make arguments TO inform them, using witnesses and experts in the field. Oh, one may occasionally come across a judge who happens to be familiar with a topic because of their life experiences, but the system itself does not anticipate this. It presumes the judge knows nothing and is ONLY informed through admissible evidence.

Could you imagine holding a court case and then the judge making a ruling, “Yeah, I talked to my neighbor who appears to know quite a bit on this subject, so I will defer to her opinion.” Or arguing Kitzmiller and hearing the judge say when rendering his opinion, “Last night I went on CreationismIsCool.com and they had some interesting things to say.”**

**Bit off-topic, but Judge Jones is oft criticized for copying portions of a party’s brief in his opinion. This is quite common. Indeed, if the court is agreeing with that party, there is every reason to do so.

Yet as information becomes more available via the internet, the Supreme Court is deriving more information from its own google search

We want our judges (especially at the Supreme Court level) to be as informed as possible. We want them to utilize resources. But the question has become—how much is too much? The author of the law article speculates the terrifying scenario where a litigant deliberately creates a biased website on an issue in the hopes the Court will find it on the Google search.

There really isn’t an easy solution to this problem. Perhaps the most we can do is be ever-vigilant in pointing out missteps and errors on-line. To continue to direct people to Snopes.com, alternative statistics, and counter-arguments.

Who knows…a Supreme Court Justice may be reading that article later…

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