What Do Judges Know About Technology Anyway?

Frank Pasquale at  CoOp opens an interesting conversation about the varying levels of techno-sophistication, and what this means for judges making decisions about the application of law to a new, and ever-changing, technological landscape.  He links to a post at  OnTheMedia about Adam Liptak’s New York Times piece.

In the scheme of things, I’m hardly an old man in lawyer years, but I border on the ancient in the blawgosphere, where young men and women prevail and people like me, who enjoyed IBM Selectric IIIs and wet paper copiers in our early years, struggle to keep apace. 

You might think that because I have a blawg, I’m on the cutting edge of techno-savvy.  I assure you, I’m not.  Nowhere near the edge, in fact.  Actually, I can’t even see the edge if I stand on a techno ladder, I’m that far away.  The problem is that in the world of people like me, I am viewed as remarkably up on technology.  Scary, isn’t it?

And what about judges?  I must believe that there are some who, on their own, have done far better than I have in closely watching the growth of technology.  But I bet that the vast majority haven’t a clue how far behind the curve they are.  I only recognize it because it smacks me in the face with great frequency around here.

So as these cases, these situations, come before courts, how do judges get their arms around the concepts, the implications, the penumbras, of this foreign technological world?  For one thing, judges have their law clerks, fresh out of law school, to explain things to them.  This may well serve to help them understand what Facebook is all about (something I have yet to comprehend), but this fresh-faced computer mavens are unlikely to appreciate the types of problems faced by the ordinary, law-abiding businesspeople crossing borders with their laptop computers.

Even some of the most mundane, commonly accepted technology, such as the ubiquitous cellphone, remains something of a mystery to many judges.  Take, for example, the fact that the Eastern District of New York has just this month changed its policy of permitting lawyers to carry their cellphones, blackberries, whatever, into the courthouse.  The Southern District of New York still refuses to allow this, although a letter writing campaign by some defense lawyers to Chief Judge Kimba Wood will hopefully change it.

It’s understandable that courts don’t want proceedings interrupted by a loud burst of Queen’s Bohemian Rhapsody, or counsel distracted by the latest email joke making the rounds during argument, but refusal to permit lawyers to carry cellphones is tantamount to being held in contempt by many.  It doesn’t bother me, since I haven’t figured out how to turn my new cellphone on yet, but I’m hardly the measure of a normal cellphone user.

What’s worse is that the product cycle in technology is so fast, so much more in comparison to advances in anything else as I was growing up, that the judge who finally gets the hang of myspace is ten steps behind the times by then. 

I recently argued an appeal involving the faxing of a legal update to a bunch of lawyers, a couple of whom took issue with the unrequested fax.  By the time the case was argued, the facsimile machine no longer bore any relationship to the effective transmission of communications of this nature.  It had long since been replaced by email and thereafter the blogosphere.  The speed of the litigation process was dwarfed by the speed of technological advancement.

Still, as I argued the case, it quickly became clear that the judges were unaware, and unpersuaded, that the fax machine was as relevant to the transmittal mechanism as a horse to FedEx overnight delivery.  One judge was clearly stuck on the problem of how to deal with undesired faxes, the 1st Amendment notwithstanding, and could not be convinced that his fears, “if taken to the logical extreme,” would never be realized since this bit of techno-magic was more of a dinosaur than he was.

Even though I understand little about the power of technology, where it’s heading and why I should try to keep up with the wave, I understand very well that courts are ill-equipped to deal with the interrelationship.  I see many of our old and loved rules of law hindering technological enjoyment and advancement, not because anyone intends that to be the result but because they just don’t get it or know any better.  I see misapplication of law and horrible unintended consequences in our future, and judges stuck to ill-conceived precedents that simply don’t work in the real world the way courts understood them to work in the quiet of their chambers.

Before some reader demands (I’ve been getting an awful lot of demanding readers lately) that I provide a viable answer to the problem I raise, let me say as clearly as possible that I have none.  Don’t ask.  I don’t know.  But for those of you who do understand all about the latest and greatest in technology, bear in mind that when you have a case involving some new-fangled gadget or idea or phenomenon, chances are pretty good that the judge won’t have a clue either.  Adjust your argument accordingly, and be prepared to explain what your talking about to the court in a way that could be understood like a 3 year old. 

9 comments on “What Do Judges Know About Technology Anyway?

  1. Other Steve

    [raises hand] Ooooh! Ooooh! Pick me! I have a demand!

    Actually it’s just a question – have you seen this technological unfamiliarity in courts have an effect (adverse or beneficial…or neutral) on criminal defendants? Obviously, a client is less able to reach his attorney if the attorney is in a courthouse that prohibits cell phones, but have you seen any other consequences to your (or other attorneys’) clients?

    Let me know when you finally come around to Facebook. And thanks for complying with my other demand to remind me what the Trial Lawyer Theme Song was.

  2. SHG

    Have I seen these problems have an effect on defendants?  I’ve seen a number of recent decisions or stories about cases where these problems are arising lately, particularly with computer search cases.  I’ve seen them in eBay fraud cases that I’ve defended.  I’m seeing them in a case involving importation of counterfeit goods.  I’m seeing them with cases involving email and websites.

    Today, almost every white collar case I have, there is a computer/internet/digital component.  Documents are seized from hard drives, emails are needed in evidence, whatever.  The government puts some agent on the stand to conveniently explain the world from their perspective, and the judges are largely clueless about the technology, proof, manipulation of evidence, etc., allowing this to happen.  They assume that if they don’t know how it works, then the agent/expert is proper and whatever explanation they give is somehow scientifically beyond reproach.  It’s a huge problem. 

    So yes, OS, I’ve seen them and the problems are everywhere.  And they are getting worse. 

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