Justice John Paul Stevens just turned 90 years old on Tuesday. As an aging member of society, it is no wonder that he and some of his fellow justices have no idea what certain new technologies are, how they are different from each other, why we need them, etc. But since, as members of the high court, they are the final word on justice in America, does it make sense that these men and women lack a basic understanding of just the beginning of a slew of technical issues likely to come before them in the next few years?
In an utterly dumbfounding transcript in the case of City of Ontario v. Quon, the SCOTUS showed their true lack of identification with the current state of technology, with Chief Justice John Roberts asking what the difference was “between email and a pager” and, and Justice Antonin Scalia struggling with the idea of a service provider (“You mean [the text] doesn’t go right to me?”). This, in a case about a pager – probably the most antiquated piece of mobile technology out there. Most of us haven’t even seen a pager in about ten years! This quote from Chief Justice Roberts shows just how confused they are:
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?
After this example, it seems like the Court likely would have trouble sorting the important privacy issues related to personal messaging and location based services on social media sites. “The law is not clear on when search warrants are required for the government to read stored e-mail, what legal standards apply to GPS technology that tracks people’s whereabouts in real time and other critical questions,” said a New York Times Op-Ed piece earlier this month. There has also been a recent push to update the Electronic Communications Privacy Act, which sets standards for law enforcement access to electronic communications. It is really important that the Court is clear on the “electronic communications” part before they can interpret and analyze the standards for law enforcement access to them.
With at least one guaranteed open seat to fill for the next term, Obama should focus on bolstering the court with a young nominee who understands technical issues in the new age. As social media plays an increasingly central role in all aspects of our lives, privacy issues will eventually need to be sorted out by a court that thoroughly understands the technology behind them.