As two defendants in an alleged cryptocurrency fraud case are finding out, what you search for on the internet could find its way into the courtroom and be used against you. The use of internet search history as evidence in federal criminal cases is relatively new. In this case, prosecutors are seeking to introduce defendants’ post-trade internet searches as evidence of fraudulent intent. Their searches allegedly ranged from “top crypto law firms” and “wire fraud statute” to “can your device be searched without a lawyer” and “crypto theft deductible.”

The critical question: should internet search history be admissible as evidence at trial? The answer is far from simple. Defendants generally have moved to exclude them, and the arguments for and against exclusion highlight the complex interplay between relevance, prejudice, ambiguity, and privilege.

Arguments for and against Exclusion

1. Relevance and Conditional Relevance

Under Federal Rules of Evidence 401, 402, and 104(b), evidence must be relevant to the alleged conduct.

The defense in the cryptocurrency case argues that the government cannot simply rely on the timing or general nature of the searches. Each search must be shown to have a factual link to the case. For instance, a search for “statute of limitations” could be motivated by any number of reasons unrelated to the alleged crime. Without more, the evidence risks being speculative and misleading.

The government, in turn, argues that the defendants’ internet searches, including relevant “terms and conditions,” relevant “terms of service,” “tether blacklist,” “wire fraud,” “computer fraud and abuse act,” and “prosecuting computer crimes – department of justice” conducted around the time of the alleged offenses, would permit the jury to infer that the defendants were concerned about violations of law, interested in how their conduct was publicly perceived, and knew that at least one issuer of cryptocurrency had blacklisted a portion of the alleged crime proceeds, all of which are directly relevant to their knowledge and identity, consciousness of guilt, and criminal intent.

2. Ambiguity and Speculation

Internet search terms alone can be inherently ambiguous. The intent behind a search is rarely clear from the words themselves. Was the person researching out of curiosity, preparing for a legitimate business transaction, or seeking legal advice?

The defense in the cryptocurrency case points out that without context, it is impossible to determine the true motivation. The risk of speculation, they argue, outweighs any minimal probative value. The Second Circuit’s decision in United States v. Dawkins, for example, affirmed that evidence must have a clear factual link to the alleged crime, not just ambiguous timing or language.

The government rebukes this argument, contending that the defendants’ internet search history is not only highly probative of their consciousness of guilt and criminal intent, but is also evidence of facilitating ongoing criminal activity as the defendants allegedly continued to search for ways to conceal evidence linking them to the underlying offense and obscuring the origins of the crime proceeds. 

3. Prejudice and Rule 403

Even if the searches are relevant, their probative value may be substantially outweighed by the risk of unfair prejudice, confusion, or undue delay. Federal Rule of Evidence 403 allows a court to exclude evidence if it would lead to “mini-trials” over the meaning and context of each search.

The defense in the cryptocurrency case warns that admitting such evidence could invite speculation and unnecessarily prolong proceedings. The defense argues that every admitted search could result in a mini-trial about its context, distracting from the core issues of the case.

In response, the government argues that Internet search histories highly probative of the crimes charged do not make them “unduly prejudicial” under Rule 403. The government contends that the defendants are free to present arguments asserting their searches, websites visited, and videos accessed were unrelated to involvement in the alleged fraud scheme, and that the weight of the evidence is for the jury to decide.

4. Attorney-Client Privilege Concerns

A particularly persuasive argument may be the risk to attorney-client privilege. Admitting internet searches may pressure defendants to waive privilege in order to explain the context of their searches.

In this case, many searches coincided with privileged communications with counsel. The defense cites United States v. McKeon, where the Second Circuit recognized that such pressure on privilege can justify exclusion under Rule 403. The motion in this case includes a table comparing the dates of specific searches with the dates of attorney consultations, supporting the argument that the searches could have privileged explanations.

The government responds that the defendants have choices – they can testify to the non-privileged fact that, on days that preceded their Internet searches, they met with legal counsel, which may necessitate waiving the privilege. Or they can assert a formal “advice-of-counsel” defense by waiving privilege and making arguments concerning the advice they received to explain why their Internet searches are not indicative of wrongful criminal intent.

Notable Decisions

Courts typically admit internet search evidence when it is relevant, probative, and specifically connected to the elements of the charged offense or related conduct, especially if the searches occurred near the time of the alleged offenses. Conversely, courts often exclude internet search evidence that is general, lacks context, or does not include details such as time and date. A few examples follow.

In State v. Sutherland, 173 N.E.3d 942 (Ohio Ct. App. 2021), a case involving sexual assault allegations, the Second District Court of Appeals in Ohio determined that the Defendant’s internet searches for “what if I’m accused of touching a child” and “how long to arrest someone” were appropriately excluded by the lower court because, while relevant, their probative value was minimal and they could plausibly reflect general information-seeking following conversations with detectives. The court ruled, however, that other searches—such as “detecting the presence of male DNA in cases of sexual assault without ejaculation,” and “how long does skin DNA last in a woman’s body”—were more specific and offered greater probative value, warranting their admission, explaining that these searches are not unfairly prejudicial. Furthermore, the Court pointed out that this evidence was central to the prosecution’s case, and emphasized that when evidence is essential, its probative value increases and exclusion becomes less justified.

Similarly, in Fowler v. State, No. 02-17-00154-CR, 2018 WL 4781570 (Tex. Ct. App. Oct. 4, 2018), a Texas Court of Appeals held that internet searches conducted by the defendant regarding the purchase of firearms and the legality of silencers—and employing terms including “vigilante,” “murderer,” and “murder”—along with Google Street View images of the victim’s residence and its surroundings, evidenced extensive research and planning admissible to show the defendant’s intent to commit the underlying attempted murder.

In People v. Safranek, No. 4-24-0967, 2025 WL 240967 (Ill. App. July 30, 2025), a prosecution for first-degree murder of a child, an Illinois Court of Appeals held that internet searches such as “serious mental illness and what is not,” “parents who kill,” and “does having scary thoughts mean you’ll act on them” conducted around the victim’s date of death were inadmissible despite their relevance, because they were less specific and were cumulative of searches that were properly admitted, such as “I’ve had thoughts about killing my kid.”

And in United States v. Suggs, 625 F.Supp.3d 428 (E.D. Pa. 2022), involving charges of Hobbs Act robbery and using a firearm during a crime of violence, a court in the Eastern District of Pennsylvania held that general internet searches with unknown dates, including “how to make meth,” “compact guns,” and “smallest glock” were impermissible as propensity evidence because they merely showed Defendant’s predisposition to commit criminal acts, which is not allowed under Federal Rule of Evidence 404(b), and the connection between these searches and the underlying robberies was unknown because the searches lacked a clear temporal connection. On the other hand, the Court held that specific internet searches involving the location of the robbery around the time of the robbery, including “masks that can avoid face recognition,” “rite aid 70 woodland ave,” and “pain Pain [sic] management pharmacy Philadelphia pa” were admissible because they were relevant, probative of the defendant’s plan and preparation for the robbery and of his identity as one of the robbers, and not unfairly prejudicial.

Practical Implications

Given the evolving legal landscape regarding the admissibility of internet search records at trial, and the discretion courts have to make evidentiary rulings, various practical implications emerge. For instance, if such searches are the result of privileged communications and supporting evidence exists, this factor can support exclusion. Conversely, in the absence of privilege, defendants face greater challenges to exclude search evidence. In practice, with the forensic tools currently available, it is virtually impossible to irretrievably erase data from electronic devices. Multiple court decisions demonstrate that even when internet search evidence is only marginally relevant or potentially prejudicial, it may still be admitted if it directly pertains to the charged offense or occurred within a reasonable time frame relative to the alleged act. Recovered internet searches can serve as evidence of state of mind, preparation, planning, intent, or knowledge related to an offense.

The traditional caution to be mindful of what one commits to writing now extends to digital activity.

Conclusion

The court in the cryptocurrency case has yet to issue a ruling on this issue. We will continue to watch it closely.