Opinion: Technical Difficulties at the Supreme Court

6-2-2010 Washington DC:

(June 1) -- If you're in America and not yet acquainted with cell phones, computers and the Internet, you must have spent the past decade under a rock. Or be a member of the U.S. Supreme Court.

Supreme Court justices lately have displayed a startling level of ignorance about computing and communication methods that many Americans take for granted. Yet, as members of the nation's highest court, they're increasingly setting legal precedents about these very technologies.

At a November oral argument, Chief Justice John Roberts, who reportedly drafts his opinions with pen and paper instead of a keyboard, compared a software program being executed on a computer with a typewriter typing out words on a piece of paper. He also referred to Internet search engines as a "search station."

In an April oral argument, Justice Anthony Kennedy wondered what would happen if a text message were sent to someone at the same time he was communicating with someone else. "[Does] he ha[ve] a voicemail saying that 'Your call is very important to us; we'll get back to you'?" Kennedy asked, eliciting laughter from those in attendance.

The justices' tech-cluelessness was not just an irrelevant oops, but actually incredibly important in the two cases: applying intellectual property law and interpreting the privacy protections of the Fourth Amendment.

Most recently, during a congressional subcommittee meeting two weeks ago, Justice Antonin Scalia admitted he didn't know about the popular social networking service Twitter. "I don't even know what it is ... But, you know, my wife calls me 'Mr. Clueless,'" he said.

These are just a few examples. No wonder the Court is often criticized for being out of touch with ordinary people.

Of course, it is far better that justices ask dumb questions than just form an opinion without the answers. No one is an expert in everything. Most Americans would undoubtedly seem equally foolish if questioned about a Constitutional law issue, such as the Commerce Clause.

However, technology touches virtually every aspect of our lives and often is affected by laws. With the Federal Communications Commission now aggressively attempting to regulate the Internet, cyberbullying testing the limits of free speech in schools, and bloggers seeking the same rights as journalists, the Court will invariably be called upon to make judgments that relate to technology.

It's crucial for our most important decision-makers to have at least a rudimentary understanding of technologies most Americans can't imagine living without. If the Court can't grasp how business inventions have changed since the Industrial Revolution, or how communication methods have changed since Alexander Graham Bell, then they might make decisions that misapply the law due to a misunderstanding of the facts about technology.

In order to modernize the Supreme Court, future appointees -- beginning with Elena Kagan, whom President Obama in May nominated to replace retiring Justice John Paul Stevens -- should be vetted for their tech savvy.

Current Court members need to take the initiative to change themselves. While technology has forced workers in many industries to retool or retire, justices can't be required to change because they enjoy lifelong appointments.

Fortunately, they need not even leave their ivory tower for assistance. Many rely heavily on their law clerks to do everything from research to write their opinions. Clerks tend to be tech literate 20- and 30-somethings fresh out of law school, which may explain why the justices' bloopers occur in the off-the-cuff environment of oral arguments rather than in opinions. But, ultimately, technology is best learned through hands-on usage, not from reading a legal memo.

Perhaps they can follow the lead of Justice Stephen Breyer, who said he learned about Twitter by sitting down with his son for a lesson.

"Remember when we had that disturbance in Iran?" Breyer said at the congressional subcommittee meeting two weeks ago. "My son said, 'Go look at this.' And oh, my goodness. I mean, there were some Twitters, I called them, there were people there with photographs as it went on. And I sat there for two hours absolutely hypnotized. And I thought, 'My goodness, this is now, for better or for worse ... not the same world'. It's instant and people react instantly."

Breyer, obviously, has some catching up to do on the Digital Age. But it's a start. And it's better than being complacent with being "clueless."

As Breyer noted about the Internet: "It's not something that's going to go away." ..Source.. Mark Grabowski is a media law professor at Adelphi University in New York.