The Supreme Court’s real technology problem

I spent a lot of the last week shaking my head at the commentary on the Supreme Court and its (lack of) technical expertise. Much of the criticism came in response to the oral arguments in Aereo, and broke down in two areas: it either misunderstood the nature of Supreme Court oral arguments and their transcripts, or mistook familiarity with a handful of Silicon Valley products with actual tech savviness.

But in a series of cases yesterday about law enforcement searches of cell phones, we caught a glimpse of the Supreme Court’s real technology problem. Here’s what it comes down to: it’s not essential that the Court knows specifics about how technology itself works—and as Timothy Lee argues, that might even tempt them to make technology-based decisions that don’t generalize well. However, it is essential that the Court understands how people use technology, especially in areas where they’re trying to elaborate a standard of what expectations are “reasonable.”

So when Chief Justice Roberts suggests that a person carrying two cell phones might reasonably be suspected of dealing drugs, that raises major red flags. Not because of any special facts about how cell phones work, but because (for example) at least half of the lawyers in the Supreme Court Bar brought two cell phones with them to the courthouse that day. Should those attorneys (along with the many, many other people who carry multiple devices) reasonably expect less privacy because the Chief Justice is out of touch with that fact?

Contrast that with Justice Kagan’s point about storage location in the same argument. Justice Kagan suggested, correctly, that people don’t always know what is stored on their device and what is stored “in the cloud.” The actual answer to that question should be immaterial; the point is that it’s absurd for a person’s privacy interest to hinge on which hard drive private data is stored on. 1That speaks to a need to revisit the sort-of ridiculous third-party doctrine, which Justice Sotomayor has suggested, but one battle at a time. Instead, the important fact here, which Justice Kagan recognizes, is that the distinction between local and cloud storage just doesn’t matter to many people, and so it can’t be the basis of a reasonable-expectation-of-privacy test.

If you’re feeling less generous, you might take Justice Kagan’s point as evidence that she herself doesn’t know where her files are stored. And in fact, that’s probably true—but it’s not important. You don’t actually need to know much about filesystems and remote storage to know that it’s a bad idea for the law to treat it differently.

That’s not to say that technical implementation details are never relevant. Relevant details, though, should (and almost always do) get addressed in the briefs, long before the oral argument takes place. They don’t usually read like software manuals, either: they’re often rich with analogies to help explain not just how the tech works, but what body of law should apply.

What can’t really be explained in a brief, though, is a community’s relationship with a technology. You can get at parts of it, citing authorities like surveys and expert witnesses, but a real feeling for what people expect from their software and devices is something that has to be observed. If the nine justices on the Supreme Court can’t bring that knowledge to the arguments, the public suffers greatly. Again, Justice Kagan seems to recognize this fact when she says of cell phones:

They’re computers. They have as much computing capacity as ­­ as laptops did five years ago. And ­­ and everybody under a certain age, let’s say under 40, has everything on them.

Justice Kagan is not under 40, and might not have everything stored on a phone (or on an online service accessible through her phone). But that quote shows me that she at least knows where other people’s expectations are different. Chief Justice Roberts’s questions show me exactly the opposite.

The justices live an unusual and sheltered life: they have no concerns about job security, and spend much of their time grappling with abstract questions that have profound effects on this country’s law. But if they fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.

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1. That speaks to a need to revisit the sort-of ridiculous third-party doctrine, which Justice Sotomayor has suggested, but one battle at a time.