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