A link on Twitter led me to a post at the Law Blog of the Wall Street Journal. Ashby Jones had fun mocking Our Tech-Savvy Supreme Court.
They were hearing oral arguments in City of Ontario (California) v. Quon. At issue was whether a member of the Ontario police could expect privacy for personal messages received on his SWAT-team pager, and whether people sending texts to that device could expect that the recipient’s employer would not review those texts.
Jones highlights some remarks by the justices:
- Chief Justice Roberts asked what the difference was between e-mail and a pager.
- Justice Kennedy wondered whether, if you’re sending a text as one arrives, the person who sent that one sees something like “you call is important to us; we’ll get back to you.”
- Justice Scalia asked whether a sent text doesn’t go right to the recipient. (Jones thinks he was confused by the idea of a service provider.)
(You can judge for yourself, if you’d like. Here’s the transcript of the oral arguments. I think the remarks that Jones highlights are at pages 29 [Roberts, email and pages], 44 [Kennedy, your call is important], 48-49 [Scalia, service providers; printing texts].)
Yes, it is amusing if you think the youngest member of the Court doesn’t know the difference between email and a pager. But that’s about all it is, amusing. What I think is more pertinent here is that the justices were asking questions to better understand things unfamiliar to them, and that they were focusing on larger issues and not the details of technology.
For instance, Jones left off the first part of Roberts’ question, so I’ll highlight it here:
Maybe everybody else knows this, but what is the difference between the pager and the e-mail? (transcript, page 29)
I have no idea what level of techno-expertise Roberts has, but I’d guess he’s more familiar with email than with pagers, and trying to understand (a) what the difference might be, and (b) whether that difference makes a difference.
In terms of the busy-signal question from Justice Kennedy, it turns out that a few minutes earlier, Roberts had asked:
What happens, just out of curiosity, if you — 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?
To which the attorney answered, “I don’t think that’s in the record,” which is how a lawyer often phrases “I don’t know.”
As for Scalia’s remark about where a message goes, my guess is that he was being facetious (though we can’t know till there are audio recordings of oral arguments).
A discussion (starting about page 45 in the transcript) had to do with whether it made a difference that the text messages were handled by a service provider. Scalia asked whether, when you send a text message, you’re pretty much aware that it remains private only if the recipient “or somebody else who has power over the recipient” chooses to look at it. The lawyer said yes.
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.
Dammeier (attorney): Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message. And —
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.
Dammeier: Well —
Scalia: You mean it doesn’t go right to the other thing?
You may not agree with the opinions that the justices issue, but I think the transcript illustrates several things. First, they’ve gotten a grasp of the legal issues in the case (which is, after all, their job). Second, they’re more than willing to ask questions. Third, as evidenced by Roberts, at least some of them are unafraid of saying, “I don’t understand X. Can you explain it to me?”
Which isn’t a bad way to start learning more about things you know that you don’t know.