On the Internet, nobody knows you're a judge: appellate courts' use of Internet materials.

• Author: Barger, Coleen M.
• Position: Federal judges

1. INTRODUCTION

   Computer-literate researchers in the last few years have found it increasingly easy to use an Internet search engine to surf the Web, turning up dozens (or thousands) of hits--web sites with content that matches key words in the researcher's search query. Sometimes the hits are right on point; other times, they are not. Readers may recall seeing a cartoon in The New Yorker showing two dogs beside a computer terminal. One explained to the other: "On the Internet, nobody knows you're a dog." (2) Although a point of the cartoon was to highlight the anonymity Internet users may enjoy, it also illustrates that those who seek information on the Internet may unwittingly be relying on the "dogs" that their research turns up.

   This Article explores federal appellate judges' use of and reliance on materials found on the Internet, as evidenced by their citation and use in appellate opinions. Practitioners and scholars may be interested in learning about appellate judges' use of such materials because such data will reveal the kinds of authorities judges deem to be binding or mandatory, inform them about the kinds of materials judges find persuasive, and demonstrate what sources judges find helpful or instructive.

   Several questions shaped the research for this study. For example, what kinds of Internet sources are being cited in appellate opinions? What kinds of research support do the sources provide--background factual information? Footnote glosses? Or are courts using these sources as authority for legally significant facts of which they are taking judicial notice? Similarly, to what extent are courts relying upon Internet sources of law--as convenient substitutes for materials commonly found in print? As parallel citations to materials also cited in print media? As authoritative materials that are only available online? Next, are the cited sources still available on the Internet, and if so, are they identical to the way they appeared at the time they were accessed by the judicial author? Finally, if the cited sources are not presently available, why not?

   To answer these questions, the author set out to collect the opinions written by Supreme Court justices and federal circuit judges that cite sources found on the Internet; (3) to categorize the types of Internet sources most often cited in federal appellate opinions; and to evaluate the reliability, availability, and currency of the sources cited. In collecting the opinions, the author found decided trends, not only in the increasing number of citations to Internet-based materials, but also in the increasing number of web site addresses no longer available or accessible. Appellate judges need to know that the sources they cite may not be accessible to eventual readers of the opinion. Armed with this information, they should either choose different, and more permanent and stable, sources, or they should find ways to preserve the cited Internet materials for later researchers to consult. Too many recent opinions rely upon questionable or non-available sources, and such misplaced reliance certainly cannot be what judicial authors wanted or intended.

2. LEGAL AND NONLEGAL AUTHORITY

   Law professors teach their students that "authority" is something that directs or persuades a law-making entity to hold a certain way. (4) The senior partner who directs the associate to find "good authority" wants the young lawyer to locate something recent, relevant, and mandatory, preferably in the nature of a statute or a case holding from the controlling jurisdiction. Thus legal researchers have traditionally looked for information that is more than just informative; they have looked for information that is unquestionably authoritative.

   As Professor Robert Berring explains the unique mindset of legal researchers, it is premised on the special characteristics of legal authority:

   The doctrines of the law are built from findable pieces of hard data that traditionally have been expressed in the form of published judicial decisions. The point of the search is to locate the nugget of authority that is out there and use it in constructing one's argument. Because legal researchers are so accustomed to this idea, it is difficult to realize how unique this concept is in the world of information. In most fields in the humanities or social sciences, a search of the literature will reveal certain orthodoxies or prevailing views, certain points in contention with each side having its own warrior-like adherents, but there are no points of primary authority. There are no nuggets of truth or treasure.... Legal researchers believe that there are answers out there that are not just powerfully persuasive, but are the law itself. (5) And yet, modern researchers, who find themselves in what Berring calls "a world of uncontrolled sources," (6) often find that they need more in the way of reference materials than just the classic primary and secondary authorities. Thus a court may cite to a non-traditional source that is not necessarily a citation to an acknowledged "authority," in the sense that the source represents the law as promulgated by one of the branches of government or represents a persuasive secondary source authored by a legal scholar with a particular area of expertise. (7) In fact, modern courts often cite common nonlegal sources, such as general encyclopedias or dictionaries; (8) they have been known to cite such diverse common nonlegal sources (9) as newspapers, songs, poems, books, and movies. As it became acceptable--or at least, not unusual--to cite and rely upon such everyday sources, no one should be surprised that many courts would begin to cite sources found on the emerging resource medium for the lay public, the Internet.

   Not every jurist would agree, however, that these nontraditional sources always provide adequate support for judicial decisionmaking. In a recent case deciding that a defendant's forced wearing of a stun belt during his testimony was sufficiently prejudicial to warrant a new trial, the California Supreme Court conducted considerable research outside the record concerning the safety record and the medical and psychological effects of such belts. (10) This research was severely criticized by dissenting Justice Brown, who echoed the definition of "nonlegal" authority given by Professors Schauer and Wise (11) when she deplored her colleagues' search results:

   [C]ourtroom security is a serious business. Were this court to take it seriously, one would hope, with the resources available to us, we could find a better means of informing ourselves than by relying on such secondary sources as a student comment in a law journal ... and a Progressive magazine article that bares its heart in its subtitle--Stunning Technology: Corrections Cowboys Get a Charge Out of Their New Sci-Fi Weaponry.... A high school student who turned in a research paper with a bibliography like that would be unlikely to get high marks for either the distinction or balance of the authorities cited. (12) The Supreme Court has compared the Internet, from its users' point of view, "to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services." (13) The comparison is apt; using the same tools computer, keyboard, Internet service provider, search engine--a person can study the invention and history of golf in Scotland, research climate data for the North Atlantic region in midsummer, reserve accommodations at a golf resort in St. Andrews, apply for a passport, book an airline flight to Edinburgh, and purchase new clubs to take on the journey. The tools and methodology to perform all these tasks are the same; the results of each of these searches are delivered to the searcher's own computer screen. Purchases and reservations are made with a credit card over a "secure" and trustworthy connection. Reputable institutions and commercial concerns alike promote their web addresses and encourage visitors and customers. The searcher is assured that she can use the Internet with ease, with confidence, with satisfaction. Is it any wonder, then, that so many are tempted to trust what they find there? Have they confused the ever-changing market offerings of the "sprawling mall" with the permanence of the holdings in an institutional depository of information?

3. INCREASING USE OF THE INTERNET FOR RESEARCH

   The media in which legal information is published have changed greatly in the last decade and will continue to change. What was once available only in a paper-based print source may now also (or only) be found in digital format on a compact disk, in an online database such as Westlaw or LEXIS, or in hypertext markup language (HTML) on the Internet. Even if books are not yet obsolete, many researchers find it easier and faster to use an Internet search engine to locate and retrieve their target materials than to physically visit a bricks-and-mortar library for a paper version of the same materials, or if they are not available locally, to wait while an interlibrary loan request is filled. As noted above, the proliferation of information on the Internet has also attracted the general public's interest, and the use of search engines makes it easier than ever before to pull up possibly relevant data.

   The Internet, unlike a library with limited shelf space, can accommodate all who want to publish there, for whatever reason. The Supreme Court has observed that

   [f]rom the publishers' point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals. (14) The simplicity and low cost of web publishing, (15) coupled with the...