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Technical difficulties at the Supreme Court

During oral arguments today in the case City of Ontario v. Quon, which considers whether police officers had an expectation of privacy in personal (and sexually explicit) text messages sent on pagers issued to them by the city, the justices of the Supreme Court at times seemed to struggle with the technology involved.

The first sign was about midway through the argument, when 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.

It wasn’t just the justices who had technical difficulties. When Justice Samuel Alito asked Quon’s attorney Dieter Dammeier if officers could delete text messages from their pagers in a way that would prevent the city from retrieving them from the wireless carrier later, Dammeier said that they could.

A few minutes later, Alito gave Dammeier another shot at that question.

“Are you sure about your answer on deletion?” Alito asked.

Dammeier admitted that he didn’t know. “I couldn’t be certain,” he said.

More on oral arguments in the case here on Lawyers USA Online.

* UPDATE: As several commentators have noted, the Court’s official transcript quotes Justice Roberts as asking, “what is the difference between the pager and the e-mail?” – suggesting he may have been inquiring in this context, and not more generally.

59 comments

  1. This is hilarious/tragic. It reads like an article from the Onion.

  2. You would think that among nine of the most brilliant legal minds in the country, at least one of them would do 10 minutes of research and find out what the relevant technological concepts are.

  3. I had to read that twice to be sure it wasn’t satire…

    I must admit I’m also amused its the Republican Tea Party judges that seem most confused…

  4. Ryan,

    The Onion is actual news, prognosticated.

  5. The justices’ questions seem as if they were written for a SNL skit. It instills confidence that their legal decisions will stand the test of time.

  6. Why don’t we have specialty courts for cases of a highly technical nature?

    There should be a computer court, a medical court, an IP court, a narcotics court, et cetera. I just can’t understand why all law is suddenly equal when it comes to judges.

    This has bothered me for a long time, and I’ve never really seen anyone questioning the whole nature of our court system. But every time I see a judge who doesn’t understand some highly technical case, and everyone goes “HAW HAW SO OLD,” all I usually think is “well fuck, I don’t understand that shit very well either.”

  7. Wow, the people on this site and the commenters really don’t understand how the law works.

    While things like texting may seem obvious, the Justices are asking these questions not out of ignorance, but because they need to be 100% sure about how things work WITHOUT MAKING ASSUMPTIONS ABOUT HOW THINGS WORK.

    That means asking seemingly stupid questions so the answers are captured FOR THE RECORD.

    For example, when someone deletes a pager message, what exactly happens? Is it just deleted from the device? Is it deleted by the ISP? If there is a function that allows deletions of messages, does that mean there is an expectation of privacy?

    The justices are not technological luddites. They are simply exposing the intricate facets and the implications of technology through their questioning. What’s sad is how everyone assumes they must be idiots, as if any one on this board could carry a candle in a conversation with any of them.

  8. Okay, has ANYONE read the transcript of the arguments? I’ll make it REALLY easy: http://bit.ly/bIC5JK – Read Page 28 line 18 through Page 30 line 7. Context is important folks: It’s not as dumb a question as you all think it is.

  9. Roberts’ question is not really that kooky or out-of-touch; depending on what point he’s trying to reach, it could be a valid differentiation. In some ways pages and emails really aren’t that different, aside from the transmission medium.

  10. I, for one, welcome our self-righteously clueless and out-of-touch judicial robot overlords.

  11. Magnus The Destroyer

    What Pete and voretaq7 said. The comments above are ignorant.

    What he was most likely asking is what is the DIFFERENCE between a text message and an e-mail, since they both convey a written message. This is an important legal distinction to elicit, because if it’s found that there is no difference (and legally there probably isn’t) then it could affect the outcome of the case.

    People should try to understand how the legal process works rather than making fun of them. This is your life on the line. Your liberty and your freedom are decided by these people. Laugh at them if you will, hate them if you must, but what they do affects your lives. It would behoove you to understand what they are doing first, then determine if they are worthy of derision and ridicule. Underestimating them based on out of context quotations does nobody any good, least of all the people deriding and ridiculing. In this case, you all made yourselves look like asses.

  12. All the more reason Larry Lessig should be appointed to the Supreme Court. He is the single most qualified technology jurist.

  13. Exceptionally bad reporting.

  14. Can’t we just do away with all this outdated supreme court crap and have legal proceedings published on open websites, allowing the public to just text their vote to Amerian Idol?

    Over 50% and you win your case!

  15. It took me five minutes to open the transcript and find the section where Roberts makes the comment in question. You’re either only listening with 10% of your attention when you took it the way you portray it or you’re deliberately misconstruing his statement.

    Here is the statement in context:

    JUSTICE GINSBURG: But my question is, an employee reads this policy and says, oh, my e-mails are going to be subject to being monitored -
    MR.DAMMEIER: Sure.
    JUSTICE GINSBURG: Wouldn’t that employee expect that the policy would carry over to pagers? When you think of what’s the reason why they want to look at the e-mails, wouldn’t the same reason apply?
    MR. DAMMEIER: Well, I’m sure the same reasons could apply but the — the city is the one who writes the rules here. The — if they want to make it clear on what it applies to, it certainly should be on them to write them clear so the employee understands it.
    CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the e-mail?
    MR. DAMMEIER: Sure. The e-mail, looking at the computer policy, that goes through the city’s computer, it goes through the city’s server, it goes through all the equipment that — that has — that the city can easily monitor. Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off-duty.
    CHIEF JUSTICE ROBERTS: You can do that with e-mails.

    So not only have you portrayed this exchange dishonestly, you even misquoted him!

  16. Wait, so your telling me that in a court for you “the judges arn’t stupid” people that a judge needs to ask:

    “What is the difference between a Garbage Bag and a Pen?”

    Just for the record?

    Really?!?

  17. Thanks for the link voretaq7. A lot clearer when you have the original source.

  18. One of the lawyers was trying to argue that employees are entitled to privacy when using their pagers, but not when using email. Roberts asked the obvious question: what’s the [legal] difference between a pager and email?

  19. Paul makes a good point. Legal decisions depend on having the most precise examination of definitions possible – and not just knowing the latest tech buzzwords in a casual way.
    And this is an idea that also relates to Voting machines: if you don’t know EXACTLY how they work, then you can’t guarantee that they are secure. And I suspect that most of the PC “experts” posting here do not know how their votes are recorded or how their e-mail works (exactly, down to the smallest detail). Your bank probably knows exactly how their ATMs work. And we know (or can find out) exactly how paper ballots systems work in a given election. But with voting machines, the manufacturers (some also make ATMs) tend to hide behind “trade secrets”, security(!) or some other such nonsense and refuse to let true, independent experts examine all of the code and circuitry without exceptions. This is something the GOP is known to have taken advantage of in the Ohio Presidential election in 2004 (and perhaps elsewhere).

  20. What’s the difference between email and a pager????You gotta be kidding me!

  21. Sad article, sadder that it’s being picked up and spread around the internet, and saddest of all that ignorant people will take from it only a misguided criticism of the Justices, rather than remedying their own ignorance about the legal issues in this case and why the Justices would be asking the questions they did.

  22. I agree that first Roberts quote is unfairly out of context. But some of the other questions still seem troublesome. Kennedy’s question about the “busy message” seemed pretty far off. Scalia and Roberts both admit they didn’t realize ISPs were involved in delivering the messages, and imply that they therefore disagree with the lawyer’s statement that “in today’s society that’s a reasonable assumption to make.” I actually don’t know if that’s a reasonable assumption or not – certainly among people commenting on a law website it might be, but for another demographic it might not be.

    Scalia’s question about whether he could print out the conversations and share them with all his friends was perhaps the worst. It reminded me of the hubbub about John McCain and e-mail during the campaign. I can’t find the exact quote about it, but it essentially went “I don’t demand a president who uses e-mail all the time, but I demand a president who understands what e-mail is and the part it plays in the lives of millions of Americans.” I feel the same way about Scalia’s question – I don’t demand a Justice who texts day and night, but I demand a Justice who understands that printing out an e-mail or page to share it with friends is completely defeating the purpose of using electronic communication in the first place.

  23. Thank you for the link to the transcript, by the way.

  24. This article really, really needs to be removed.

  25. The thing is, it was the advocate that was arguing there was a legal difference in how the courts should treat pagers as opposed to emails in the context of an employment policy. The Chief Justice was then trying to elicit what the difference was between the two that warranted the legal distinction. Which is exactly what any good judge ought to do.

  26. That isnt all they are missing, they are missing their hearts too..

  27. This case isn’t even about the technology involved, it’s about right to privacy and whether or not an employee should have that privacy extended on an employers communication device.

  28. The scorn here is ridiculous. You really think John Roberts doesn’t know the difference between an email and a page? A guy who was just partner at one of the biggest law firms in the country (and really isn’t that old)? He probably sent more emails per day from his firm-issued blackberry than everyone here in a week. If anything these guys would understand the difference better than most of us because they actually probably had pagers, unlike anyone under 40 these days. Quoting out of context is dishonest, and believing those quotes when they’re too dumb to to be real is silly. These people are very, very smart. If they aren’t familiar with it, they can figure it out quick. Also, keep in mind they have 25 yr old clerks briefing and writing for them on this stuff.

  29. SCOTUSFail!

    Glad to know these individuals with such power and control over potentially precedent-setting privacy cases don’t know squat about the underlying technology.

  30. Andrew, the Scalia comment about printing the email ALSO makes perfect sense in context where they’re discussing the reasonable expectation of privacy of the person sending a message to someone. The question of actual printing capability on device XYZ is clearly not the point in that section (p48-51) but rather the sharing of information and who makes copies.

    I think it’s similarly unreasonable to bust on them for their awareness of how the information moves between individuals across a service provider. They may believe that it’s some sort of quantum magic and there’s no companies and cell towers, but it’s far more reasonable to read the discussion in context and believe that they were getting into the issue of the fact that those pages are STORED and capable of being produced for the officers’ employers upon request at a later date.

    And I bet if you asked 100 random people who idly use email in the course of their work you’d find that better than half of them have no idea if their messages are stored on a server or how long. For the Justices to endeavor to clarify this fact – particularly given that the reasonable expectation of privacy is pivotal to this case – is not in the smallest bit shameful.

    It’s this article that’s shameful.

  31. What I find weird is the ignorance of others still posting ‘HA HA, idiots’ type of comments when clearly at the top are those who took the top to discuss the context.

    Are people not reading the comments before even posting their own as well?

  32. If anything, this makes me feel slightly better about the Supreme Court. They may not know technology (heck, I don’t have or want a pager or Ipod either!) but they’re asking the right questions.

    Which of course doesn’t necessarily mean they’ll get the right result (mine). :7)

  33. Building on Don’s point:

    Firstly, the question about the difference between an e-mail and a pager was in the context of how the department policy applies separately between the two services. The written policy was that the department could monitor e-mail, but they later said they considered pager messages e-mail. The question was in context, then, was what’s the difference between pagers and e-mail [in regards to differing expectation of privacy as applies to the department's policy]? Technical differences play into that, but they’re not the only determining factor.

    But much more egregiously, you paraphrased Alito’s question to Dammeier as “if officers could delete text messages from their pagers in a way that would prevent the city from retrieving them from the wireless carrier later.” Here’s the text from the transcript:

    JUSTICE ALITO: Can an officer who has one of these pagers delete messages from the pager -MR.
    DAMMEIER: Yes.
    JUSTICE ALITO: — so that they can’t be recovered by the department if the pager is turned into the department?
    MR. DAMMEIER: Sure. Yes.

    Now, your paraphrase could reference a different section that I haven’t read, but I think it’s safe to assume it’s that section, because shortly thereafter he got, as you describe, a chance to change his answer. Here’s Alito’s question:

    JUSTICE ALITO: Are you sure that — are you sure about your answer to the question of deletion? It’s not like deleting something from a computer which doesn’t really delete it from the computer?

    Again, he’s referring to the pager, and doing so with a fair amount of tech savvy. A lot of people don’t know that sometimes deleting just marks data as deleted and doesn’t actually delete it. He probably was presented with that in another case, but he’s not completely out of the loop.

    I don’t know if I agree that this article is shameful, but it’s certainly not careful. In fact, I’d argue that my second point constitutes a factual error which should really be corrected.

  34. Took me time to read all the comments, but I truly enjoyed the post. It proved to be Really useful to me and I am sure to all of the commenters right here! It’s always good whenever you can not only be informed, but additionally entertained! I’m sure you had fun writing this article.

  35. Please read the Constitution: they’re JUDGES of the Supreme Court, not Justices.

    Roberts does wear two hats: 1) Judge on the Supreme Court; 2) Chief Justice of the U.S.

  36. Phineas J Whoopie

    So… Are the chief justices Amish? Luddites?

    Or for the purposes of the case being argued, do they have to get both sides to spell out what each contends text messaging is “like” ???

    The justices cannot just decide the first case involving text messages using their own personal assumption about the technology. They have to get the litigants to advance competing definitions of what text messaging is like (in terms of older technology that has been framed by precedents). I it like a fax? or a radio? or a telephone call?

    Only then can they decide that both or either side is blowing hot air.

    They have to “play dumb” about the technology, they cannot do an “everyone knows what a text message is”.

    So this is a bit unfair.

  37. I think people are taking this at face value too much. These judges are just being careful and asking questions to make sure they have all of the facts about the the issue. Technology is something that progresses constantly. They just want to be sure they are aware of the possibilities involved. Asking questions is what makes them the kind of people who make good judges. Not that I agree with every thing they say, but I do believe they know the difference in the basic way about text vs. email etc.

  38. Employee Email privacy has a;ready worked it’s way through the courts and was decided that employees do not have the expectation of privacy on their employee issued email accounts and employee issued PC’s. This prior decision withstanding, the Chief Justice then presented the retorical question “what’s the difference between email and a pager?” meaning why would their be any difference in an expectation of privacy for an employee issued pager (I.E. mobile communication device with text capabilities) vs. the expectation of privacy for employee issued email accounts.

    Not only was the Chief Justice’s question not a stupid question, it was actually a very appropriate question.

  39. In our today’s world, the question about privacy is a whole board game altogether.

  40. The factor is, it was the advocate that was arguing there was a legal difference in how the courts really should treat pagers rather than email messages within the context of an employment coverage. The Chief Justice was then looking to elicit what the difference was in between the 2 that warranted the legal distinction. Which is precisely what any very good judge must do.

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