The Supreme Court and Questions about Technology

An interesting article has been making the rounds this week concerning technology and the Supreme Court entitled "Technical difficulties at the Supreme Court." If you have time, you should read the short article, but in summary, it details some of the questions that the Supreme Court justices have been asking during the arguments for the City of Ontario v. Quon case. The officer involved with the case, Sgt. Quon, charges that his messages were searched unconstitutionally. It appears that after Sgt. Quon exceeded his allotted usage limit, the city acquired transcripts from the pager provider and discovered that Quon had used the pager for personal purposes and that some messages were sexually explicit. The questions presented to the Court include:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.
2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager.
3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer. (source)

These are of course interesting questions with potentially interesting consequences. Nevertheless, what is getting the most attention is the level of technological knowledge, or lack thereof, that people feel the justices are demonstrating. For example, Justice John Roberts, Jr. asked about the difference “between email and a pager” while 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?’” Justice Antonin Scalia’s questions -“You mean (the text) doesn’t go right to me?” - seemed to intimate a concern about the role of service providers and the ability to print text messages - “Could Quon print these spicy little conversations and send them to his buddies?”. Even Quon’s lawyer was uncertain about some of the technological aspects of the case as he struggled to answer a question about technology posed by Justice Samual Alito concerning whether or not officers could delete text messages from their pagers in a way that would prevent the city from retrieving them from the wireless carrier later. Initially, the lawyer said that they could but later noted that he “couldn‘t be certain.”

I bring attention to this article not to pick on the justices, but to show that all of us have a bit more to learn about technology. I’m certain that some of us in this class are quite comfortable texting, IMing, BBMing, using Facebook and Twitter, blogging, and perhaps even gaming, yet we’d still have a tough time explaining the ways in which, for example, text messages are routed from one phone to another. I think that that is what came to mind when I first came across this article - both how much I know and how little I know at the same time. It’s amazing how much we don’t realize that we know.

A thread discussing this article was started on a listserv to which I belong which includes mostly Computer Science students and faculty though a few people are from other backgrounds. The comments were actually kind of different. Some of the comments concerned the justices' level of knowledge about technology:

This is really depressing and daunting. It is emblematic of how out of touch our leadership is with technology and its implications. Technology, particular our newer systems of interaction and communication, are evolving so much faster than our legal and political system, and those who are incumbent within.

It is troubling that these justices are going to make key decisions about something they certainly have no deep understanding. It does not bode well for their decisions on other important and timely issues such as net neutrality -- where one's participation in the internet culture fundamentally impacts one's understanding of it.

Another poster thought that the questions posed by the justices were valid:

Some of those seemingly stupid questions might have been asked for legal reasons; i.e. they were really focusing on issues of law and not issues of technology. Did the reporters understand what is going on and report it correctly? In my experience, reporters almost always get important details wrong.

Another poster still thought that anyone could have posed those questions and that perhaps the justices weren't that different from any other person who uses technology casually:

Yea this report is just taking a bunch of quotes out of context and making fun of the justices, and saying they don't use iPhones. Most of the questions I can easily imagine being asked in a rhetorical, investigative way. And why should anyone (besides us CS freaks) know how a TXT message is transmitted between two phones? Younger people certainly have a better feel for how all this stuff works, but we are on the extreme end of the spectrum of understanding it. I guess justices can't be expected to be experts on every topic... their job is to listen to lawyers and expert witnesses and whatnot and decide who they believe (or who they want to believe). In education, don't we say there is no such thing as a "dumb question?"

I provide these quotes to help exemplify the different ways that people responded to this article and also to sort of show that technology and our understanding of technology is anything but straightforward. What do you guys think about all of this?