The Supreme Court heard oral argument in City of Ontario v. Quon, providing the perfect opportunity for criminal defense lawyers to get a bird’s eye view of the folks into whose hands the future of the Fourth Amendment is placed, should Orin Kerr’s tech neutral approach become the format for future of search and seizure law.
The point isn’t the Quon case per se, which is about the Stored Communications Act, a boring yet unconstitutional law that circumvents the Fourth Amendment because Congress says so, but about how tech neutrality plays out. The notion is that the myriad of issues raised by developing technology and the digital world under the Fourth Amendment should be addressed by applying the rules developed over the past century for brick and mortar searches and seizures to electrons by analogy. Orin explains it in his article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010), but that’s my shorthand version.
Just in the nick of time comes this post from Ashby Jones at the WSJ Law Blog . Meet the tech savvy justices who will be deciding which analogy to use to deprive you of your constitutional rights.
According to the story, the first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)
At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.
“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)
Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.
“You mean (the text) doesn’t go right to me?” he asked.
Then he asked whether they can be printed out in hard copy.
“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.
No doubt this will make you feel a whole lot more comfortable putting the future of our freedom from unreasonable searches and seizures into their hands, appreciating their firm grasp of technology and the ability to discern which exceptions to the Fourth Amendment to apply by analogy under any given circumstances.
I bet you’re shocked to find out that Supreme Court Justices probably didn’t pre-order the iPad, desperate to be on the cutting edge of cool. And yet, let’s place our faith in personal freedom in the ability of Luddites to apply horse and buggy rules to the digital world. It would be a shame to waste a century of exceptions, right?
H/T Orin Kerr , who loves irony as much as I do.
Update: And here’s some more exchange via Orin:
CHIEF JUSTICE ROBERTS: Do any of these other people know about Arch Wireless? Don’t they just assume that once they send something to Quon, it’s going to Quon?
MR. DAMMEIER: That’s — that is true. I mean, they expect –
CHIEF JUSTICE ROBERTS: Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.
MR. DAMMEIER: Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message. And –
CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing.
And that, tech neutral types, is how the law and tech intersect.
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Roberts in particular seems a little young to ask about the difference between e-mail and a pager. Wow.
Wow. When your technical prowess is dissed by I-proudly-keep-my-aol-address I-shout-at-the-kids-with-their-iPods Scott Greenfield, you know you’re behind the curve. How humiliating!
Heh.
Unbelievable. Somebody really needs to teach these old guys how to tweet.
If only there was such a thing as a twitter expert.
It would be nice, wouldn’t it? Perhaps someone from the younger generation that could help bridge the obvious technology gap. If only such a person existed.
Speaking as a tech. guy, I find asking the difference between e-mail and a pager to be not only a reasonable, but a good question. That they’re asking such things is encouraging. Not that I’m convinced they’d even understand the answer, much less be able to make reasonable interpretations of how to deal with those differences.
How many of the people here slapping their foreheads know the difference, or could describe the various routings of copies of data happen when you send a page or an e-mail? And now let’s throw in SMS, just for fun….
In contrast to what is described above at the Quon argument, there are opinions out there by senior federal judges who do display a good deal of tech savvy. For example, read Judge Posner’s opinion in International Airport Centers, LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006) where he explains how data can become permanently deleted from a computer. The New Jersey Supreme Court also recently in Stengart v. Loving Care Agency, 2010 WL 1189458 (N.J. March 30, 2010) accurately describes how a temporary file containing an email communication can be found on a company computer after a web based personal email account was used by an employee to email her attorney.
Is it sufficient to have a judge here and there who has a working understanding of technology?
We all know it isn’t. We need a lot more than just judges here: we need a whole new conversation about how we want this part of society to work. This is bigger than the printing revolution and, while it probably won’t take as long to come to some sort of agreement, it’s probably not going to happen in the first half of this century.
But think about this: copyright is not some sort of natural law, nor related to human rights. It’s a societal agreement to grant unnatural monopolies on non-rival, well, “stuff” (I don’t think I can use the word “goods” here). When you see kids “illegally” downloading and remixing music and so on, they’re participating in that conversation. They’re saying that they don’t assign the same value to granting monopolies to creators that previous generations did; they know that they can spend an evening having fun with YouTube instead of sitting in front of the TV.
They have yet to participate in any serious way in the privacy side of things, beyond putting up an amount of personal information on Facebook pages that you and I find shocking, but that will come.