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Supremely Unsavvy

April 21, 2010

With consumer technology moving as quickly as it does, I suppose one can’t really blame the Supreme Court Justices for being relatively uninformed from time to time; after all, they’re supposed to know the law, not the tech. But not having a shred of a clue about the way something as ubiquitous as text messaging works makes one shudder when they are charged with defining a “reasonable expectation of privacy” under the now-defunct 4th Amendment. Excerpts from the oral arguments in City of Ontario v. Quon:

Chief Justice John G. Roberts, Jr. – who is known to write out his opinions in long hand with pen and paper instead of a computer – asked what the difference was “between email and a pager?”

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one 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.

Justice Antonin Scalia wrangled a bit 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.

Shame on their clerks! Granted, I’m not sure Quon should really have had a reasonable expectation of privacy on his employer-/city-issued pager, but it seems pretty apparent that our legal institutions are not equipped to deal with technological realities. Clay Shirky once said,

Institutions will try to preserve the problem to which they are the solution.

It would be more than cynical to suggest that the same force was the issue here, but some of the basic dynamics are murkily present: complex problems require complex solutions, and the apparatuses that grow to address these complex problems may become so enmeshed and reliant on the existence of the problem that they never definitively do away with it. That could certainly be said of the 4th Amendment’s “reasonable expectation of privacy standard,” which constantly calls on courts to supervise the ever-receding line of privacy, or it could also be applied to fair use standards (as I’ve wailed about repeatedly).

Another example presents itself in another recent Supreme Court case: in a 1st Amendment victory, the Supremes overturned a ban on animal cruelty videos, but on the grounds that the Court didn’t want to add animal cruelty to the list of categorically banned forms of speech, a list they non-reassuringly promised to maintain vigilance over. The better argument is that content regulation in the form of an outright ban of any form of speech is almost always pure and simple thought control because enforcing a content ban as such can be seriously attenuated from the underlying abuse when such content can be entirely simulated by cartoon or computer. But here, Shirky’s observation is dually poignant: both the Department of Justice and the Supreme Court were promising to enforce the law (though different laws for each) with assured fairness. The Supreme Court rejected the DoJ’s proposed framework:

Roberts wrote: “The Government proposes that a claim of categorical exclusion should be considered under a simple balancing test: ‘Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Calling that “a free-floating test for First Amendment coverage” and a “highly manipulable balancing test,” the Chief Justice said the test was “startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

That is, of course, why the founders opted for a republic (i.e., rule of law) to a democracy (i.e., rule of majority preference). I guess we’ll have to satisfy ourselves with some governmental realism and a balance of powers of the competing institutions who may solve some problems at some point, despite their best efforts.

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