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How your Google searches can be used against you in court

Internet search histories are now commonly used as evidence in courts, but just how reliable are they?

On 7 October 2015, 21 days before the schoolboy Bailey Gwynne was stabbed to death at Cults Academy in Aberdeen, his 16-year-old killer made a simple seven word Google search.

It read: “How to get rid of someone annoying.”

This was by no means the sole reason the unnamed teenager responsible was sentenced to nine years in prison for culpable homicide, but it is a fact that many newspapers ran with in their headlines. The Sun called the Google search “chilling”. Anyone who has delved two pages too far into the results for “ricin” after a particularly riveting episode of Breaking Bad will feel the same – for entirely different reasons.

“It is now a common occurrence for computers to be analysed along with telephones and for all social media to be interrogated,” says Brian McConnachie QC, a criminal defence barrister. “It is almost commonplace for there to be reference to at least one of these in any serious trial.”

Still, unless the search in itself is illegal, it’s unlikely you’ll be arrested or imprisoned for your curious googlings about murder or human body disposal (note: feed to pigs). But if you’re already – rightly or wrongly – a suspect in a case, your search history can be considered very damning evidence.

“A one-time search can be evidentially significant and multiple searches are not required,” says McConnachie. “However, searching for a term on many occasions – like Lolita or such like – may make it easier to invite to the court to make an adverse inference.”

Bailey Gwynne’s killer didn’t just wonder how to shake off someone irritating, and also made a variety of other incriminating searches such as “Aberdeen stabbings death per 1,000?”, “illegal knives uk” and “difference between homicide and murder”. But his defence lawyer, Ian Duguid QC, claimed in court that the searches had been taken out of context and selectively chosen by the prosecution.

“It seems like no one has followed through in these searches to see what they are,” he said, referring to a video called “14-year-old Bronx student stabs bully to death outside school” that turned out to be a cartoon. Charles Bruce, the computer forensics analyst that examined the laptop, admitted that he only investigated the searches, not the links clicked on or their content.

If you don’t find it worrying that your internet history can be twisted and cherry-picked to defend or defame your moral character then congratulations, enjoy Farmville. But are you right to be worried? McConnachie notes that although a one-time search can be considered incriminating, timing is important.

“It's unlikely that searches from long ago would be used in respect of a recent crime as relevancy would be more difficult to establish,” says McConnachie, who defended Rachel Fee, a woman jailed for abusing and murdering her toddler, Liam. Before Liam’s death, Fee and her partner Nyomi had googled “can you die from a broken bone”, “morphine for children”, and “can wives b in prison together?”. During their trial, they pleaded guilty on a count of neglect.

“I have little doubt that it was the searches that made both accused accept knowledge of the fact that Liam had a broken leg and that in failing to obtain treatment they were therefore guilty of neglect,” says McConnachie. “Timing is also significant in relation to the date of the crime. Obviously googling ‘how to treat a broken leg’ is much more significant the day after someone potentially has their leg broken than six months before that date.”

There are also various defences that lawyers can use against this sort of evidence. McConachie notes that the accused can claim to simply have been curious about a matter. If they share a computer or a device, they can also claim they didn’t make the search.

“The main thing generally would be that you cannot tell from the search who searched it – although there may be passwords involved,” he says.

These are strong defences, should you ever find yourself framed for murder trying to explain the time you googled “how to destroy human teeth” to a jury. As long as you didn’t google it a hundred times the night before a body was found behind your house, you should be safe, right? Yes, provided the technology used to analyse your search history actually worked.

In July 2011, Casey Anthony was found not guilty of murdering her two-year-old daughter Caylee. Many members of the public were outraged, as Anthony’s partying personality and alleged inappropriate grief were considered evidence of her guilt. Others could not dismiss the fact – referenced extensively in her trial – that an investigation of Anthony’s home computer revealed she had searched the word “chloroform” 84 times.

Except she hadn’t. The software used by the witness John Dennis Bradley had been faulty, and he later discovered that the world “chloroform” had only been searched for once. The website Anthony then clicked on was about the use of the organic compound in the 19th century.

The case illustrates that not only can search histories be faulty, they can also be very prejudicial. If I told you that Justin Ross Harris searched how long it takes an animal to die in a hot car a month before his son died in the same way, would you assume his guilt? If you’re an infrequent googler, maybe. If you Google every question that pops into your head, maybe not.

If all this has scared you into jamming down the delete button in a panicked frenzy, stop. McConnachie notes that investigators can and do recover deleted searches. “Indeed the fact of it being deleted is possibly even more incriminating as it could be said to demonstrate that you have something to hide,” he says.

There are two lessons here. If you are a criminal: use a library computer. If you are just curious, researching a crime novel, or fact-checking your favourite TV drama: don’t be a criminal.

“If we intend to get involved in crime or if we have been involved in crime then beware your internet search history,” says McConnachie.

Amelia Tait is a technology and digital culture writer at the New Statesman.

Photo: Getty
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We're asking the wrong questions about the Google “anti-diversity memo”

Which sex is better at what skills is less important than which skills we value in the first place. 

Yes, I feel sorry for the Google employee who has been fired for writing an "anti diversity manifesto" and circulating it within the company. (Guess what? It leaked.) Losing your job is painful, and doing it in public is even more so. But the conversation around this is heading in such an unproductive direction (do women suck at maths?) that I can't resist wading in.

I agree with the writer that these issues are hard to talk about, but that pushback comes from both directions. Look at the crap Mary Beard is wading through for trying to inject some facts into a discussion about the racial composition of Roman Britain. Nicholas Nassim Taleb keeps honking about "diversity genes" and refusing to listen to evidence that contradicts him. But in his mind, he's Mr Science - sorry, Professor Science - and she's Madam Arts-Subject.

This matters, because when it comes to diversity, there are fact-based positions on both sides. Yet there is a certain strand of Rational Internet Thinker (let's be honest, mostly men) who solemnly tells everyone that we Must Stick To The Facts while advancing deeply ideological stances, which only happen to look "natural" because they are so embedded in our culture. 

But back to the subject at hand. Here's the recap: the memo was headlined  "Google’s Ideological Echo Chamber" and its writer's firing will be taken as confirmation that his thesis was true. Ironically, this will be done by the same section of the right which usually has no problem with firing at will and normally thinks that HR should be a brutally Darwinian process. (Looked at from that perspective, of course Google would fire someone who brought such criticism on the company.) But now there are Principles involved. Probably Free Speech is under attack. Political Correctness may even have Gone Mad. Social Justice Warriors are on the march. Before it's all placards as far as the eye can see, instead I would like to look at what was actually said, and whether it's an argument with any merit. 

In essence, the memo argued that the gender imbalance of staff in tech companies like Google is primarily the result of biological, not cultural differences. ("They’re universal across human cultures," it argued. "They often have clear biological causes and links to prenatal testosterone".) There are differences in ability between the sexes, the writer said, and that's why most top programmers are men. Men like numbers, and the numbers like them right back.

The memo added:

Differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership. Discrimination to reach equal representation is unfair, divisive, and bad for business.

The section about typically female traits is also interesting, because of a couple of points the writer picks out.

"Women, on average, have more...

- Openness directed towards feelings and aesthetics rather than ideas. Women generally also have a stronger interest in people rather than things, relative to men (also interpreted as empathizing vs. systemizing).

- These two differences in part explain why women relatively prefer jobs in social or artistic areas. More men may like coding because it requires systemizing and even within SWEs, comparatively more women work on front end, which deals with both people and aesthetics.

- Extraversion expressed as gregariousness rather than assertiveness. Also, higher agreeableness. This leads to women generally having a harder time negotiating salary, asking for raises, speaking up, and leading. Note that these are just average differences and there’s overlap between men and women, but this is seen solely as a women’s issue. This leads to exclusory programs like Stretch and swaths of men without support.

- Neuroticism (higher anxiety, lower stress tolerance).This may contribute to the higher levels of anxiety women report on Googlegeist and to the lower number of women in high stress jobs.  

Well, SOMEONE has been reading their Simon Baron Cohen. The first point is a distillation of Baron Cohen's argument about "male brains" being better at understanding systems, and "female brains" being better at feelings - which he extends to say that autistic traits might be an "extreme male brain". Unsurprisingly, there are other scientists in the field, such as Cordelia Fine and Rebecca Jordan-Young, who find a lot of the neuroscience of sex difference quite flaky.

I'm not a neuroscientist, but from a lay perspective, my take is that yes, there are some biological differences between the average male and female brain, but that these pale beside a) the way our brain architecture is shaped by stimuli (like years of being told you're rubbish at maths) and b) the overall effect of culture (eg companies which value presenteeism, or make it hard for women to return after having children, or cover up for senior men who are repeated sexual harassers etc etc). 

The "higher agreeableness" point was dealt with by Sheryl Sandberg in Lean In. Women aren't stupidly not asking for raises or being assertive in the office because they are delicate little flowers. One of the reasons they are more agreeable at work is because they face heavier penalties if they are not. As Sandberg formulates it: "Success and likeability are positively correlated for men and negatively for women. When a man is successful, he is liked by both men and women. When a woman is successful, people of both genders like her less.” Women are nicer because there are more negative consequences for them if they are not nice.

The last point about neuroticism is bleakly funny, because while women might report more anxiety, men commit suicide in far greater numbers. Which gender is really more susceptible to stress and anxiety? Women talking more about their mental health on "Googlegeist" is being held against them here, when possibly one of the reasons that more men kill themselves is because of the stigma of talking about their feelings.

Overall, the memo makes some compelling points, but it also chucks in a lot of stuff that "everyone knows" about sex differences, which isn't scientifically supported, and also some evolutionary psychology about "protecting females" which strays into the kind of rhetoric found on MRA sites. Its understanding of male and female work patterns can also be naive, for example:

"Yes, in a national aggregate, women have lower salaries than men for a variety of reasons. For the same work though, women get paid just as much as men. Considering women spend more money than men and that salary represents how much the employees sacrifices (e.g. more hours, stress, and danger), we really need to rethink our stereotypes around power."  

I mean, doesn't this just raise a huge number of questions?

How often do men and women do the same work, and for what reasons might they not? (Clue: women do far more unpaid care work and housework.) Are women spending that money on themselves, or are they running household budgets, which is an unpaid project-management task they are doing alongside any paid work? What an individual finds stressful is also entirely subjective.

The author chucks in a reference to "Marxist intellectuals" but doesn't seem to have read any of the vast and fascinating literature on unpaid care and its interaction with paid work. I'd recommend starting with The Second Shift or Wife Work. Angela Saini's Inferior is a good recent choice, too, on women's overlooked contributions to science.

When I talk about feminism with self-styled rationalist men, this dynamic comes up again and again. They will present my arguments as mere anecdote and emotion, which - sad shake of the head - is contradicted by the available evidence. When you point to peer-reviewed studies, or great ethnographies, supporting your point, which they haven't bothered to read, they steam on regardless. It makes the contest deeply unequal. Internet skeptic types talk about the need to engage with writers they don't agree with, and the importance of free and open debate, but often actually don't want to read the contrary view. 

 

***

If you want to read more about the discussion of the science of sex differences which has arisen as a result of this memo, then this piece by Slate Star Codex is interesting - it argues that interest in STEM subjects, not ability, might be the key difference between the sexes. It also completely misses the point. 

Here's a thought experiment. Say you were recruiting for a spoon-juggler. Your advert would probably mention "needs to juggle spoons". But, almost certainly, there would be other skills involved. Turning up to performances on time. Keeping your spoon inventory in check. Not turning up drunk. Not stealing forks from the fork-juggler. 

This is what the argument that women can't succeed in tech because they are innately bad at the skills needed to succeed in tech sounds like to me. We know that many of the early programmers were women, back when the job was considered to be largely secretarial. (Go watch Hidden Figures for more on this, and also because it's just a lovely film and I am so happy for Mahershala Ali and Taraji P. Henson.) We know that the fastest way to depress wages in a job is to feminise its workforce. It's not unreasonable to wonder if we've constructed the whole idea of "success in tech" in such a way that it makes men's success look natural and pre-ordained. Yes, you need to be able to code to be a coder. But there are other skills you need too. 

Yonatan Zunger, who recently left Google, makes this argument better than I could. And he seems to own a pair of testicles, so you know he's more rational and objective than me:

"Essentially, engineering is all about cooperation, collaboration, and empathy for both your colleagues and your customers. If someone told you that engineering was a field where you could get away with not dealing with people or feelings, then I’m very sorry to tell you that you have been lied to. Solitary work is something that only happens at the most junior levels, and even then it’s only possible because someone senior to you — most likely your manager — has been putting in long hours to build up the social structures in your group that let you focus on code.

All of these traits which the manifesto described as “female” are the core traits which make someone successful at engineering. Anyone can learn how to write code; hell, by the time someone reaches L7 or so, it’s expected that they have an essentially complete mastery of technique. The truly hard parts about this job are knowing which code to write, building the clear plan of what has to be done in order to achieve which goal, and building the consensus required to make that happen.

All of which is why the conclusions of this manifesto are precisely backwards. It’s true that women are socialised to be better at paying attention to people’s emotional needs and so on — this is something that makes them better engineers, not worse ones."

As I said on Twitter, this is a pattern we see again and again - a high status job is coded as "male", requiring "male" traits, to justify men's dominance of it. The same thing happens in politics: we are assured that politicians need to be "strong" and "decisive", when many of the most successful male politicians today have incredible people skills. Jeremy Corbyn makes time for everyone he meets, hugging them and posing for endless selfies. Sadiq Khan has that Queen Mum ability to remember your name and a key fact about you. What's the real difference between the Clintons? Bill demonstrated huge empathy and made people he was talking to feel special; Hillary didn't. But still, maybe men dominate politics because they are just more aggressive and ambitious. Yeah, OK. 

Tech suffers from a similar silent rewriting of core competencies to flatter its mostly male leaders.

We have all these conversations about how hard it is for Mark Zuckerberg to make the leap to being a frontman CEO because he's a maths guy, not a people guy. We treat this like he's doing an amazing project of personal growth. We don't go, "wow, they really lowered the bar for CEOs to let someone without some of the key skills have a go at it". Or, "his poor colleagues, having to make up for the stuff he's not naturally gifted at". 

There was a similar reaction when Sergey Brin and Larry Page brought in Eric Schmidt when it was time for Google to "grow up". We didn't say, "How embarrassing, they have to find someone to counteract their deficiencies." We said: "Smart move. Not every human can possess all skills, it's wise to have a range of experience and aptitudes at the top of your company."

So this, for me, is the most interesting takeaway from the Google memo. "Do women suck at maths" is a complicated question, and I'm not sure how far answering it will move the conversation forwards. "Have we structured society so that those competitions between the sexes that men can win are deemed to be the most important competitions?" is a better one.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.