Thursday, April 24, 2014
FAIRFIELD-SUISUN, CALIFORNIA
99 CENTS

Technology? Some justices want to keep distance

By
From page A12 | January 08, 2014 | 1 Comment

WASHINGTON — At the Supreme Court, technology can be regarded as a necessary evil, and sometimes not even necessary.

When the justices have something to say to each other in writing, they never do it by email. Their courthouse didn’t even have a photocopying machine until 1969, a few years after “Xerox” had become a verb.

So as the legal fight over the NSA’s high-tech collection of telephone records moves through the court system, possibly en route to the Supreme Court, some justices already are on record as saying they should be wary about taking on major questions of technology and privacy.

As Justice Elena Kagan understated last summer, “The justices are not necessarily the most technologically sophisticated people.”

The wariness shows up in rulings, too. When the court in 2010 upheld a police department’s warrantless search of an officer’s personal, sometimes sexually explicit messages on a government-owned pager, Justice Anthony Kennedy suggested caution. He wrote, “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

Clear or not, the implications of technology are increasingly relevant. Constitutional protection against the prying eyes of government, without a judge’s prior approval, is embodied in the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Last month, U.S. District Judge Richard Leon of Washington ruled that the NSA’s phone-records collection program probably fails that Fourth Amendment test and is unconstitutional. Leon called the program “Orwellian” in scale.

The Obama administration has defended the program as an important tool in the fight against terrorism and is expected to appeal the ruling. Complicating matters, 11 days after Leon’s ruling, U.S. District Judge William Pauley III of New York declared the NSA program legal in dismissing a lawsuit filed by the American Civil Liberties Union. In addition, legislation in Congress and possible administration changes could alter NSA surveillance and affect the court cases.

Still, many people expect the Supreme Court will have the final word on the program, especially if other appellate judges agree with Leon.

Among those who think the Supreme Court will weigh in is Justice Antonin Scalia, who addressed the topic in July in a question-and-answer session with a technology group. He didn’t sound happy about the prospect of such a ruling. Scalia said the elected branches of government are better situated to balance security needs and privacy protections.

But he said that the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without a judge’s approval.

“The consequence of that is that whether the NSA can do the stuff it’s been doing … which used to be a question for the people … will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” he said. Scalia repeatedly used the term “wiretap” in his comments, but indicated later that he was speaking more generally about NSA surveillance, including the collection of phone records.

In the police pager case, Scalia was part of an exchange with Chief Justice John Roberts that sounded almost like a comedy routine.

Roberts was questioning the lawyer for the officer whose messages were searched. He asked whether it was reasonable for the officer and others to assume that a third party, the pager service, was actually routing the messages from sender to recipient, much the way a phone company does with calls.

“I wouldn’t think that. I thought, you know, you push a button, it goes right to the other thing,” Roberts said.

Sitting to Roberts’ right, Scalia chimed in, “You mean it doesn’t go right to the other thing?”

They may have been playing for laughs, but the justices left the impression that day that they did not fully grasp what a pager is and how the process works, said Orin Kerr, a George Washington University law professor and expert on privacy and technology.

“It was embarrassing,” said Kerr, who has urged courts to go slow and defer to elected officials in applying constitutional protections to privacy issues raised by new technologies.

Like Scalia, Justice Samuel Alito said he thinks Congress is better situated than the court to reconcile technology and modern-day expectations of privacy.

“New technology may provide increased convenience or security at the expense of privacy, and many people may find the trade-off worthwhile,” Alito wrote in a 2012 opinion joined by three other justices. “And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable,” he said in the case involving a GPS device that police attached to a car without a warrant.

He added: “On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions.”

Alone among her colleagues, Justice Sonia Sotomayor used the same case to suggest that it might be time for the court to revise its views on privacy, developed in the 1960s and ’70s as they relate to the use of telephones and other devices where people voluntarily hand over information, but assume that those transactions are closely held.

“Perhaps, as Justice Alito notes, some people may find the ‘trade-off’ of privacy for convenience ‘worthwhile,’ or come to accept this ‘diminution of privacy’ as ‘inevitable,’ and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every website they had visited in the last week, or month, or year.”

The justices themselves exercise plenty of care, whatever the reason. Kagan, speaking in Providence, R.I., last August, said that when the justices communicate with each other in writing, they write memos printed out on paper that looks like it came from the 19th century. Aides carry the documents from one justice’s chambers to another’s.

Television cameras remain barred from the courtroom, and some justices limit the use of tape recorders when they make public remarks.

Of course, the Supreme Court is asked frequently to set national rules on complicated topics about which the justices have imperfect knowledge.

It was Scalia who noted his inability to join some parts of Justice Clarence Thomas’ majority opinion in a patent case in June dealing with molecular biology. “I am unable to affirm those details on my own knowledge or even my own belief,” Scalia said in a brief separate opinion.

The Associated Press

The Associated Press

LEAVE A COMMENT

Discussion | 1 comment

The Daily Republic does not necessarily condone the comments here, nor does it review every post. Read our full policy

  • my2centsJanuary 08, 2014 - 4:59 am

    Pager...emerging technology...that would be hilarious if it wasn't so scary. The problem of many people, including members of the judiciary, not understanding technology and how it affects privacy, is serious. It helps if attorneys assist judges with explanations of how these technologies work but all to often the response is the same as it is with many people, they listen for a couple of minutes and then their eyes start to glaze over. Or worse, they learn a couple of buzz words and pretend they already understand complex technological concepts opting not to listen to any information. It's tough to keep abreast of the ever evolving technology issues that are now present in just about every case even when you are interested. It's virtually impossible if you are apathetic about how it all works and, like most people, just want the convenience technology provides without knowing what is going on behind the scenes in the binary world of 1s and 0s.

    Reply | Report abusive comment
.

Solano News

 
Congressman talks Travis, water

By Barry Eberling | From Page: A1, 4 Comments | Gallery

Travis lines up 2 days of aviation excellence

By Ian Thompson | From Page: A1, 1 Comment | Gallery

 
Appreciate how good we have it now

By Angela Borchert | From Page: A2

 
 
Dixon May Fair has deals on advance tickets

By Amy Maginnis-Honey | From Page: A3

 
Garamendi talks love, pro football and Peace Corps

By Ryan McCarthy | From Page: A3, 4 Comments | Gallery

 
Author to sign books at Vacaville Museum

By Amy Maginnis-Honey | From Page: A3

Kroc Center women schedule inaugural Taster Tea

By Amy Maginnis-Honey | From Page: A3

 
Docents to lead paddling tour in marsh

By Adrienne Harris | From Page: A4

Juneteenth committee extends vendors, exhibitors deadline

By Amy Maginnis-Honey | From Page: A4

 
Congressional Art Competition is back

By Susan Hiland | From Page: A4

 
Spilled tomato juice case set for trial

By Ryan McCarthy | From Page: A4, 5 Comments

Theme park welcomes seal pup

By Adrienne Harris | From Page: A4

 
 
Suisun City police log: April 22, 2014

By Susan Hiland | From Page: A12

 
Suisun City police log: April 21, 2014

By Susan Hiland | From Page: A12

Fairfield police log: April 21, 2014

By Susan Hiland | From Page: A12

 
Weather for Thursday, April 24, 2014

By Daily Republic staff | From Page: B12

Fairfield police log: April 22, 2014

By Susan Hiland | From Page: A12

 
.

US / World

Syrian activists accuse Assad of new gas attacks

By The Associated Press | From Page: A1

 
Murder charge for Vallejo man in head-on crash

By The Associated Press | From Page: A5, 1 Comment

California bill reignites affirmative action fight

By The Associated Press | From Page: A5, 3 Comments

 
Andy Lopez protest leads to school campus lockdown

By The Associated Press | From Page: A5, 3 Comments

Navy Cross bestowed on heroic Marine

By The Associated Press | From Page: A5, 1 Comment

 
Airport official: Teen had no clue he was in Maui

By The Associated Press | From Page: A5

US weighs clemency for inmates jailed for 10 years

By The Associated Press | From Page: A6, 1 Comment

 
Gun carry rights expanded in Ga. under new law

By The Associated Press | From Page: A6, 4 Comments

First lady announces one-stop job site for vets

By The Associated Press | From Page: A6, 2 Comments

 
Rail safety effort marred by squabbling

By The Associated Press | From Page: A6, 1 Comment

Small Wyoming town evacuated after gas explosion

By The Associated Press | From Page: A6

 
Bashtag: NYPD Twitter campaign backfires

By The Associated Press | From Page: A6, 1 Comment

Soldier convicted in WikiLeaks case gets new name

By The Associated Press | From Page: A6

 
Lawyer: US man held in Cuba seeks to go home soon

By The Associated Press | From Page: A10, 1 Comment

Captain who left doomed ferry had 40 years at sea

By The Associated Press | From Page: A10

 
Russian social media CEO quits, flees country

By The Associated Press | From Page: A10

Amid Russia warning, Ukraine is in a security bind

By The Associated Press | From Page: A10, 1 Comment

 
Palestinian rivals to try again for unity deal

By The Associated Press | From Page: A10

Camilla’s brother dies in US after head injury

By The Associated Press | From Page: A10

 
State senators get ethics training after scandals

By The Associated Press | From Page: A12, 7 Comments

.

Opinion

Question of the week: Will Flight 370 be found?

By Daily Republic | From Page: A11

 
Be the first and give specifics

By Letter to the Editor | From Page: A11, 2 Comments

What we can do about crime

By Kelvin Wade | From Page: A11, 14 Comments

 
Castro at odds with mentor on deportations

By Ruben Navarrette | From Page: A11

Some Earth Day boos and cheers

By Jay Ambrose | From Page: A11

 
.

Living

Today in History for April 24, 2014

By The Associated Press | From Page: A2

 
Community Calendar: April 24, 2014

By Susan Hiland | From Page: A2

When Joe’s mad at me, he also ignores my 7-year-old son

By Kathy Mitchell and Marcy Sugar | From Page: A9

 
Horoscopes for April 24, 2014

By Holiday Mathis | From Page: A9

.

Entertainment

TVGrid

By Daily Republic Syndicated Content | From Page: B5

 
Jodie Foster weds artist Alexandra Hedison

By The Associated Press | From Page: A7

Singer Chris Brown’s DC trial delayed for months

By The Associated Press | From Page: A7

 
Performing dogs go big after $1 million TV prize

By The Associated Press | From Page: A7

Amazon snares classic shows in deal with HBO

By The Associated Press | From Page: A7

 
.

Sports

Mustangs swim to sweep of Indians

By Marcus Lomtong | From Page: B1 | Gallery

 
Warriors, Clippers to meet in Oakland for Game 3

By The Associated Press | From Page: B1

Sharks confident with chance to sweep LA Kings

By The Associated Press | From Page: B1

 
Girls soccer update: Armijo, Vanden on way to playoffs

By Paul Farmer | From Page: B1 | Gallery

A’s reject 10-year Coliseum lease offer

By The Associated Press | From Page: B2

 
Prep softball: Vanden rolls to 14-0 win over Fairfield

By Daily Republic staff | From Page: B2

 
Prep badminton: Unbeaten Mustangs cruise past Crushers

By Daily Republic staff | From Page: B2

Prep boys golf: Vikings suffer SCAC loss to Panthers

By Daily Republic staff | From Page: B2

 
Sanchez’s slam in 11th helps Giants beat Rox 12-10

By The Associated Press | From Page: B2 | Gallery

Prep track: Armijo girls get win in MEL 4-way meet

By Daily Republic staff | From Page: B2

 
Perez helps Rangers sweep A’s with 3-0 win

By The Associated Press | From Page: B2 | Gallery

Party a century in the making for Wrigley Field

By The Associated Press | From Page: B2

 
Emmert supports more efficient, effective NCAA

By The Associated Press | From Page: B3

Phelps having fun in his return to swimming

By The Associated Press | From Page: B3 | Gallery

 
Suns’ Dragic honored as NBA’s Most Improved Player

By The Associated Press | From Page: B3

Seahawks to open NFL season vs. Packers

By The Associated Press | From Page: B3

 
Oldest living ex-MLB player dies in Cuba at 102

By The Associated Press | From Page: B12

 
.

Business

Wellness programs grow more popular with employers

By The Associated Press | From Page: B5

 
Sales of new US homes plunge 14.5 percent in March

By The Associated Press | From Page: B6

Buffett disapproves of Coca-Cola’s pay plan

By The Associated Press | From Page: B6

 
Amazon snares classic shows in deal with HBO

By The Associated Press | From Page: B6

US stocks edge lower after a six-day rise

By The Associated Press | From Page: B6

 
Facebook 1Q results soar; CFO to step down

By The Associated Press | From Page: B6

Apple increases stock buyback, will split stock

By The Associated Press | From Page: B6, 1 Comment

 
.

Obituaries

Phyllis J. Miller

By Nancy Green | From Page: A4

 
Dondi Martin

By Nancy Green | From Page: A4

.

Comics

Rose is Rose

By Daily Republic Syndicated Content | From Page: A8

 
Garfield

By Daily Republic Syndicated Content | From Page: A8

Pickles

By Daily Republic Syndicated Content | From Page: A8

 
For Better or Worse

By Daily Republic Syndicated Content | From Page: A8

Peanuts

By Daily Republic Syndicated Content | From Page: A8

 
Wizard Of Id

By Daily Republic Syndicated Content | From Page: A8

Dilbert

By Daily Republic Syndicated Content | From Page: A8

 
Baldo

By Daily Republic Syndicated Content | From Page: A8

Blondie

By Daily Republic Syndicated Content | From Page: A8

 
Baby Blues

By Daily Republic Syndicated Content | From Page: A8

Beetle Bailey

By Daily Republic Syndicated Content | From Page: A8

 
Sally Forth

By Daily Republic Syndicated Content | From Page: A8

B.C.

By Daily Republic Syndicated Content | From Page: A8

 
Frank and Ernest

By Daily Republic Syndicated Content | From Page: A8

Get Fuzzy

By Daily Republic Syndicated Content | From Page: A8

 
Zits

By Daily Republic Syndicated Content | From Page: A8

Cryptoquote

By Daily Republic Syndicated Content | From Page: A9

 
Crossword

By Daily Republic Syndicated Content | From Page: A9

Word Sleuth

By Daily Republic Syndicated Content | From Page: A9

 
Bridge

By Daily Republic Syndicated Content | From Page: A9

Sudoku

By Daily Republic Syndicated Content | From Page: A9