James Grimmelmann considers the Supreme Court’s inability to understand the difference between the pager and the e-mail:

Reading about the Supreme Court oral arguments in City of Ontario v. Quon makes me sad and angry in equal measure.

Why so emotional? Here are the Court’s questions, in a case about whether messages on an employer-provided pager are private or the property of the employee:

CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the e-mail?

CHIEF JUSTICE ROBERTS: What happens, just out of curiosity, if you’re — he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis? Does he — does the one kind of trump the other, or do they get a busy signal?

JUSTICE SCALIA: Can you print these things out? Could Quon print these — these spicy conversations out and circulate them among his buddies?

Grimmelmann observes:

This is a case whose resolution depends critically on the details of the technology at issue. …I don’t expect judges to be avid Twitter users with a Metafilter login and a tumblog, but this is a case in which their job requires that they learn enough about the technology to pass intelligently on it. Justices Roberts and Scalia failed to prepare adequately for the oral argument.

Why do we care? If 30 Rock teaches us nothing else, it’s that pagers are irrelevant to modern lives. But privacy of electronic messages is not. As the Court muddled toward this decision, Facebook was further exposing content users had posted privately. And the White House worked towards replacing the oldest member of the Court with a justice who will most likely be evaluating unimaginable technologies as they blur the lines between public and private.

Email has existed in some version since the 1970s, as have pagers. If Chief Justice Roberts doesn’t understand the difference by now, he never will. There’s no reason to expect Justice Stephens (who celebrates his 90th birthday today) to be expert in these technologies, but it is to be hoped that whoever comes to replace him will have that knowledge. The expectations of privacy associated with new technologies like Facebook, access to ubiquitous encryption, and the growing mobility of internet appliances, to name a few, are issues sure to confront the Court in years to come. The next Justice will play a key role in ensuring that the Court keeps on top of these developments, and that the rulings of the Court neither hinder new technologies nor allow corporations or the government to abuse citizens and our rights online.

I doubt that the Senate will probe the next Justice’s familiarity with the twittersphere, BitTorrent, Facebook, the joys of anonymity, and the dangers of Anonymous, but they should. That’s more important than the religious background or geographical diversity of the court.


  1. #1 llewelly
    April 20, 2010

    The expectations of privacy associated with new technologies …

    … are pure fantasy, for those of you who have been asleep for the last 10 years.

    Right to privacy or no, it should be blatantly clear by now, we do not in practice have any such thing, and things are not going to get better. Most web services, of whatever sort, are looking to sell all the data they collect – and looking to collect as much data as affordable. Grocery stores and other businesses collect data about you every time you make a purchase, unless you don’t use their “discount” card. Video recording tech continues to become cheaper, higher resolution, and more widely used. The NSA has implemented massive, high-throughput, high-storage capacity warrantless wiretapping at many key internet intersections. Many other governments have done similar things. Computers employees use to do their jobs (and sometimes computers students use to do their homework) are often programmed to monitor them. All of this has its good points and bad points. For example, video cameras are catching lots of bad behavior by police officers and other government officials, but for better or for worse, privacy is a thing of the past.

    Furthermore – as long as we persist with the frankly naive notion that there is any rational basis for different legal treatment of messages transmitted via email, snail mail, pager, phone call, twitter, facebook, etc, new technologies will always emerge faster than most judges can be expected understand them, and often in less time than it takes important cases to work their way through the justice system.

  2. #2 llewelly
    April 21, 2010

    OT: Steven E. Levingston quotes your excellent analysis of Cupp’s book at length in Cupp skips the facts in arguing against evolution . You should mention this on your blog.

  3. #3 Joshua Zelinsky
    April 22, 2010

    Religion and geography may matter here. By some measures the South of the US is technologically less developed than other areas. See for example the estimates of broadband access in rural areas. http://www.ers.usda.gov/Briefing/Telecom/demandservice.htm looks at both internet access and broadband access in farms which provides a rough proxy for rural access levels. See also http://hothardware.com/News/First-US-Broadband-Project-Payments-Go-Out-Can-We-Get-Everyone-Online/

    Obviously this is a very rough proxy and simply quizzing a potential justice on basic tech issues will work better. But the geography question here has some validity.

    Note that correlations between religion and internet usage are much more complicated. non-Catholics are more likely to be heavy internet users: http://www.allacademic.com/meta/p_mla_apa_research_citation/0/1/4/2/2/p14224_index.html . Note that historically fundamentalist and strongly evangelical Christians have been some of the first adopters of new technologies for specifically religious practices. Radio preachers and tv preachers are excellent examples of this. I have no idea if that has influenced rates of lay use of technologies.

    And now that the nice little stats and logic are out of the way: The fact that the Chief Justice of the Supreme Court not only doesn’t understand the difference between a pager and email is off the wall. And that he didn’t try to even maybe talk to one of his clerks about this is disgusting. If stupidity and gratuitous ignorance were impeachable offenses I’d be pushing for his removal. The fact that these people are deciding cases involving technology issues is all the more frightening when one thinks of the difficult issues such as gene patenting that the court is going to likely need to deal with very soon. If neither Roberts or Scalia will go through the minimal effort to talk to a clerk for a few minutes about common technologies, what makes one think they’ll bother to do any research at all regarding basic understanding of the biological issues. Hell, what makes me think that any of these people know what a gene is? Or the difference between a gene and an allele?

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