United States: Court Rules Detainee Has The Right To Google An Attorney

Last Updated: June 5 2013
Article by Jeffrey N. Rosenthal

The Legal Intelligencer

How long has it been since you used a phonebook to find information? Five years? Ten? Now, think about the last time you used an online search engine, like Google, to accomplish the same thing. It may actually be harder to recall a time when Google was not an option.

Today, Google is the world's largest search engine, used for everything from finding local businesses, to email, to getting maps, and now socializing on the Google Plus network.

In fact, one Canadian court was so convinced Google has become the phonebook of the modern age it ruled the Alberta, Canada, police must provide detainees with Internet access just so they can find a lawyer online. And that failure to do so could even prevent an accused from being given reasonable access to counsel. Should this recent development spread, soon may come a time when all detainees are reminded of their right to Google an attorney.

IN GOOGLE WE TRUST

A play on the word "googol" (the mathematical term for a 1 followed by 100 zeros), Google has quickly risen to become the unquestioned leader in online search providers. Founded in 1998, Google has grown to more than 30,000 employees worldwide, with a management team representing some of the most experienced technology professionals in the industry.

So just how widespread is Google? According to a Forbes article titled "Should Small Businesses Still Book Yellow Page Ads?" multiple studies have confirmed that consumers report using the Internet first (80 percent of the time) when they need a new product or service, and printed Yellow Pages only second or third (about 50 percent of the time). And according to GO-Globe.com, an online Web applications development firm, Google serves more than 694,445 queries every 60 seconds. So it should come as no real surprise Google would find itself at the forefront of yet another basic consumer need: the need to obtain counsel.

O CANADA

On January 21, the Provincial Court of Alberta issued R. v. McKay, 2013 AB.C. LEXIS 60, a case involving Christopher McKay, 19, arrested for DUI.

After being taken to the police station, McKay asked to contact a lawyer. The police directed him to a telephone, gave him a toll-free number, a phone book and mentioned directory assistance using 411. McKay made one call, was unable to get assistance, and gave up (incredibly, McKay later testified he thought he was only allowed one phone call based on movies and TV).

Then things got interesting. At his hearing, Judge Heather Lamoureux asked whether McKay was satisfied with his toll-free call and he responded he was not at all satisfied. Rather, McKay said he normally conducts an Internet search to obtain unknown information, was unfamiliar with 411 and does not consider it a "viable search engine."

Lamoureux found the key issue in the case to be "whether Internet access should form part of police resources provided to detainees in order to facilitate a reasonable opportunity to exercise the constitutional right to counsel."

"We are at an unprecedented time in human history," Lamoureux wrote. "The real world exists parallel to and in tandem with the virtual world. It is uncontroverted that the vast majority of individuals born after the year 1980 first look to the virtual world for information, for education, for access to services, before they consider access to anachronistic services such as paper telephone directories and numbers posted on a wall."

The McKay court next took judicial notice that the average 19-year-old would look to the Internet for information to get legal advice before checking the telephone book or the directory number. To drive the point home, Lamoureux observed a Google search of "Calgary criminal defense lawyers" turned up 11 results — including the names of experienced criminal defense lawyers, addresses, telephone numbers, email addresses and other educational information concerning their services — in under 5 seconds.

Based on the foregoing, the judge held the failure to provide Internet access constituted a breach of Section 10(b) of the Canadian Charter of Rights and Freedoms, resulting in the denial of McKay's reasonable opportunity to exercise his right to access a lawyer. As a result, the judge further opined that "in the year 2013 it is the court's view that all police stations must be equipped with Internet access and detainees must have the same opportunities to access the Internet to find a lawyer as they do to access the telephone book to find a lawyer."

All this despite the fact McKay never even asked the arresting officer for Internet access when he had the chance.

IMPLICATIONS: SEARCH ONE AND DONE?

Is permitting a detainee to Google an attorney an example of judicial forward-thinking or merely change for its own sake? Should the novel legal concepts found inMcKay take root elsewhere, this is the difficult question criminal courts around the globe will soon face.

As an initial matter, the court's decision in McKay to grant Internet access was done on its own initiative (in the sense that the detainee never made such a request). So too was the pronouncement to expand this ruling to all police stations made sua sponte. Whether courts in other countries would first require a detainee to expressly request Internet access before invoking such constitutional protections has yet to be seen.

On a macro level, McKay provides yet another example of the judiciary recognizing the impact the virtual world has on the real one. But regardless, the idea of having detainees search Google for an attorney presents some unique issues that will need to be explored.

On the one hand, there are many benefits to permitting access to information on the Internet via Google. First, online information is likely more current and detailed than that found in the Yellow Pages. Second, online users can read attorney reviews and ratings before making their selection (a feature unavailable with traditional print media). This, in turn, could result in more work for well-regarded practitioners. Detainees can also ensure defense counsel would be within their budget. Third, Google searches automatically return local information first, meaning less data to ultimately sift through. And fourth, detainees may even be able to gain some basic legal knowledge when they need it most, thereby creating a more informed populous.

But there are other concerns to consider as well. For example, law professor Michael Geist of the University of Ottawa noted that there may be resource implications for police agencies in providing such Internet access to detainees. And what happens if the system is temporarily unavailable? Could this constitute a violation of individual rights?

There may also be unforeseen safety concerns. Indeed, one can do much more damage online than with the telephone (obvious examples include trying to communicate with the victim and/or contacting someone willing to further the crime). Which leads to yet another quandary: Will police have to monitor a detainee's search history?

Nowadays it may be more common to see a phonebook propping up a slanted table than in the hands of someone looking for information. And while Google may not yet be poised to completely usurp the telephone as the traditional means of contacting one's attorney of choice, McKay is certainly a step in that direction. The larger question is whether this trend will prove to be a welcome evolution or just another example of technological advances creating more burdens than benefits. This may be one answer not even Google can provide.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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