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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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MR. DAMMEIER: That's -- that is true. I mean, they expect -­

CHIEF JUSTICE ROBERTS: Well, then they can't have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.

That's when he and Scalia and the lawyer get into a discussion, also ridiculed, about how text messages are routed through a communications company, which is later analogized by the justices to a post office.

MR. DAMMEIER: Well, they -- they expect that some company, I'm sure, is going to have to be processing the delivery of this message. And -­

CHIEF JUSTICE ROBERTS: Well, I didn't -- I wouldn't think that. I thought, you know, you push a button; it goes right to the other thing.

 MR. DAMMEIER: Well -­

JUSTICE SCALIA: You mean it doesn't go right to the other thing? (Laughter.)

In this instance, Roberts and Scalia both admit to ignorance about how exactly text messages are routed, but it's less about their own ignorance than it is to get to an understanding about the general public's reasonable expectation and how the Fourth Amendment might apply. To argue they're hopelessly out of touch doesn't make sense once you read their conclusion, in which they seem to grasp the service provider concept just fine:

CHIEF JUSTICE ROBERTS: So we have to assume for your argument to succeed that they know this goes somewhere else and then it is processed and then it goes to Quon...

JUSTICE SCALIA: Well, but that's the situation here. The -- the central location that stores the message is one thing, but she's made -- made the message public effectively by sending it to Quon. Once it gets to Quon she knows that Quon can make it public or that the employer can -- can find out about it... That -- and that's why you have the statute, because the Fourth Amendment wouldn't solve the problem, because you are effectively making it public by sending it to somebody whom you don't know is immune from disclosure. So in order to stop the intermediary from making it public, you needed the statute. Otherwise you wouldn't need it; the Fourth Amendment would solve the problem, right?

There are certainly some humorous moments in the transcript (some come from the lawyers)— a discussion between Roberts and Kennedy about whether a pager allows for SWAT members to receive notices while he's texting his girlfriend off-duty ends with Kennedy wondering whether an emergency work call might get, "Your call is very important to us; we will get back to you."— but it's too easy to stereotype the justices as old, out-of-touch boobs. A reading of the transcript, which is here, reveals they're not for the most part.

And, in the areas where they are ignorant of technology's ins and outs, they seem willing to admit it, and try to understand. One would hope that's what we'd want from justices offering up the ultimate decisions on privacy protections in such a new and quickly evolving area as mobile technology. Orin Kerr suggests that knowing their limitations should lead the judges to be cautious in applying Fourth-Amendment protections to new technologies. Whether you agree with that or not, certainly knowing their limitations is important if they have any chance at getting things right.

My understanding of the transcript is undoubtedly imperfect, as I'm more of a tech nerd than a legal nerd myself, but one thing's certain. John Roberts knows the difference between e-mail and a pager.

Rachel Maddow later added a correction to her finger-puppet segment, but she merely apologized for assigning the wrong finger-puppet face to the wrong "dogmatic, right-wing Supreme Court justice." Kind of missing the big picture. Do the Supreme Court legal nerds get to make fun of all the tech nerds now for their apparent inability to read, old-fashioned words on paper? Maybe they should text their transcripts to all of us.

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