DCDicta reported today on many of the questions asked during oral arguments. Some of these questions show an almost surreal disconnect with the 21st century. Here are a few examples:
Chief Justice Roberts wanted to know the difference ''between email and a pager.''
Justice Scalia apparently is unaware of the function of service providers and asked ''you mean (the text) doesn't go right to me?''
Justice Kennedy wanted to know what happens if a user receives a text while they are in the middle of sending another one out.
It's amusing, in a sense, to think such accomplished and influential people could lack the basic understandings of the predominant form of communication in the world today. But it also frightens me. How the internet operates, how it is similar to and different from other forms of communication, how information is generated, transmitted, and saved - understanding these things will be critical as cases involving privacy rights in the new century make their way to the Court.
In the years to come we're going to see a rash of these cases. Some will deal with government interference in privacy rights while many will deal with private action. Understanding how these ''new'' technologies are both similar to and different from those of the last century isn't a laughing matter. In 1928, the Court held that the 4th amendment did not protect us from wiretaps installed without court order in Olmstead v. United States. Chief Justice Taft wrote the opinion for the 5-4 majority over a vigorous dissent from Justice Brandeis. As part of the argument, Taft was forced to distinguish between telephone conversations and sealed mail, because the Court had already ruled that mail remained under the protection of the 4th amendment after it leaves the possession of the sender. The distinction, according to the Court, was that the US Mail was a constitutionally established function while phone service was provided by a private company. From 1928 until 1967, nearly 40 years, Olmstead remained the law. Not until Katz v. United States said that privacy follows a person, not a place, was the government barred from using wiretaps without a warrant. That period includes most of J Edgar Hoover's years as head of the FBI, during which time he amassed secret files on politicians, civil rights activists and others he considered undesirables. Much of that information was gathered through wiretaps without court authority.
As the Court looks at these issues in the coming decade, I earnestly hope that they will take into consideration not only how the internet and other new forms of mobile communications are different from earlier generations of technology, but also how the role these systems play in everyday life is similar. We don't need to go 40 years between another Olmstead and Katz while waiting for the law to catch up to technology.
