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Chief Justice Roberts Knows the Difference Between E-mail and a Pager

Urban legend prevention.

2:05 PM, Apr 23, 2010 • By MARY KATHARINE HAM
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Everyone's having a big laugh over the Supreme Court's alleged lack of tech savvy, as illustrated during oral arguments in a case (Ontario vs. Quon) focusing on text message privacy for a city employee using a city-provided pager.

Chief Justice Roberts Knows the Difference Between E-mail and a Pager

The gist of the case is that a SWAT team member had a government-issued pager with which he was sending racy text messages to his girlfriend. There was an official policy in the police department that messages sent on department-owned technology would not be private, but another of the SWAT team member's bosses deemed that pagers could be put to personal use outside of work, as long as he paid for overages. At issue is how much privacy someone texting with such a device can expect from the government. It's relatively new territory for the courts, and the SCOTUS decision could have a big impact on how Fourth-Amendment protection is extended to electronic material.

Which leads us to oral arguments, several exchanges of which led to lots of Internet mocking of the justices. It was the perfect nerd storm. Nerds who love technology and politics were nerdy enough to be attuned to news of a Supreme Court oral argument about a nerdy technology issue. When the nerds on the Court evinced insufficient familiarity with the tech nerds' domain, young, tech nerds of the Internet promptly turned on old, legal nerds of the Court in a shocking display of nerd-on-nerd mockery. See Rachel Maddow, who made an entire finger-puppet segment out of the "spectacularly uninformed" SCOTUS, which can be seen here. (I, too, am guilty, having linked a post poking some fun at the justices yesterday without reading the original transcript first.)

Soon, everyone with a Twitter account was electronically guffawing about how John Roberts doesn't know the difference between e-mail and a pager and enjoying a bonus laugh at the fact that John Roberts was appointed by George W. Bush. No wonder he's dumb, huh?

The problem is, the mockery (at least of Roberts's question, which has gotten the most attention) is based on an unfair and incomplete reading of the transcript.

The question for which the Court has gotten the most flack is this one from Roberts (pdf):

CHIEF JUSTICE ROBERTS: Maybe -- maybe everybody else knows this, but what is the difference between the pager and the e-mail?

Wow, that does sound silly, doesn't it? But Roberts isn't asking about the difference between e-mail and a pager. He's asking about the differences in how police department policy treated e-mails sent from a computer and texts sent from department-issued pager. He's actually making a rather sophisticated distinction, not betraying his ignorance. The exchange preceding Roberts' question features Quon's lawyer Dieter Dammeier explaining the policy, "The city will periodically monitor e-mail, Internet use and computer usage," and Justice Ginsburg asking if it wouldn't be reasonable for an employee to assume the same would apply to texts sent via pager.

And, here's Dammeier's answer to Roberts:

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.

MR. DAMMEIER: Certainly, certainly. But -­ but in this -- in this instance with the pagers it went through no city equipment, it went through Arch Wireless and then was transmitted to another -- another person.

What Roberts is trying to tease out is whether there are differences in reasonable expectations of privacy and the police department's conduct depending on where e-mails are stored (on a government server) vs. where text messages are stored (by a private company).

He expands upon this thought later:

CHIEF JUSTICE ROBERTS: Again, it depends upon their reasonable expectation. Do any of these other people know about Arch Wireless? Don't they just assume that once they send something to Quon, it's going to Quon?

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