NY Times: Google Trends May Help Define Obscenity

Joanne Cachapero
NEW YORK — This morning, the New York Times ran a front-page article about attorney Lawrence Walters planned use of Google search data in his defense of Clinton Raymond McCowen, aka Ray Guhn, who is accused of money laundering, obscenity, racketeering and prostitution in a potentially precedent setting case.

McCowan was arrested in 2006 culminating a months-long investigation into the operations of Guhn's company, Global Technologies Inc., doing business as Ray Guhn Productions. The website that he shot content for, CumOnHerFace.com, is part of the Cash Titans affiliate program, which he owned.

While the case is distinguished by charges pertaining to the RICO Act, of racketeering, money laundering and prostitution, as with many cases involving adult producers, a key component of the Ray Guhn case is determining whether or not the material that was distributed on the Internet by Guhn’s company can be ruled as obscene.

Traditionally, attorneys use the three-prong Miller test to make the determination. However, one of the “prongs,” which requires the material to be deemed obscene by local community standards, becomes a complicated issue when trying to define the standards and parameters of community when applied to the Internet and its users.

According to the article, Walters also hopes to show jurors that searches for adult-oriented material are much more common than more conservative parties would like to believe.

“The whole thing that you have to remember is that when the whole concept of community standards was created, there really was very little material available for private, in-home viewing,” industry attorney Allan Gelbard told XBIZ. “Everything was on film and you went to a movie theatre, so there was a way for people to determine what the community standards were, simply by walking around and seeing what was available.

“But with the advent of home theatre distribution systems, DVD and the Internet, it takes it into a much more private vein,” Gelbard said. “So in order to be able to establish what the community standards are, especially for a jurisdiction for Internet distribution, you have to be able to look at what the community is looking at.”

The data available from Google Trends shows only what the popularity of certain search terms are over a length of time and not exact numbers of searches.

Walters has subpoenaed Google for more detailed search information, however, including specific sexual terms that may have been searched by local residents in Florida, where the trial is scheduled to begin on July 1.

Walter’s strategy for persuading the jurors is similar to what industry attorney Jeffrey Douglas did in the recent trial of Paul Little, aka Max Hardcore, which was tried in Tampa Bay, Fla.

During the trial, Douglas set up a computer in the courtroom and proceeded to search various sexual terms to show the jurors there were millions of references to adult material on the Internet, whereas searches for non adult-related terms yielded much smaller results.

But the jurors remained unconvinced. Hardcore was eventually convicted on all 10 counts of distribution of obscene material through the U.S. Postal Service and on the Internet. His defense team has currently filed an appeal for a new trial.

Douglas stated also, in the article, that a better gauge of community standards might be determined with data reflecting what the public’s habits where in terms of mail-order adult content, because it would offer an indication of what people access in the privacy of their own homes.

Walters, Douglas and Gelbard all agreed that privacy was an issue in determining community standards of obscenity.

“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” Walters said in the article.

Using the Internet data, “we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed,” Walters said further.

Particularly in the Ray Guhn case — which also differs from other recent obscenity prosecution because there was no physical product shipped to consumers, only content delivered online — the question of what users are allowed to access on home computers is brought into play.

“Whatever materials people want to view in the privacy of their own home is personal, and — short of certain areas like how to build a hydrogen bomb or child pornography — they’re nobody else’s business,” Gelbard said.

“They’re personal and the government seeking to criminalize what people want to watch in the privacy of their own home is preposterous in this day and age,” he added. “It’s political and if you think that it isn’t, you don’t understand the nature of the system.”

In the article, American Civil Liberties Union staff attorney Chris Hansen also raised the issue of privacy, in the context of data collected by Internet entities being used as evidence in a legal case.

“That’s why a lot of people are nervous about Google or Yahoo having all this data,” he said.