Tuesday, April 15, 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

Crews make quick work of vehicle fire

By Glen Faison | From Page: A6, 6 Comments | Gallery

 
People line up for Krispy Kreme opening

By Glen Faison | From Page: , 11 Comments | Gallery

Solano Jews gather for start of Passover

By Amy Maginnis-Honey | From Page: A3 | Gallery

 
Weather for Tuesday, April 15, 2014

By Daily Republic staff | From Page:

 
 
County discusses consolidated dispatch

By Barry Eberling | From Page: A4

 
Paper Clover Campaign supports Solano County 4-H

By Amy Maginnis-Honey | From Page: A6

 
Miner Slough Bridge to see repairs

By Barry Eberling | From Page: A4

 
‘Heaven is for Real’ opens Wednesday

By Amy Maginnis-Honey | From Page: B5

Fiesta Days pageant organizers seek contestants

By Amy Maginnis-Honey | From Page: A5

 
Easter hunt set for Mare Island

By Barry Eberling | From Page: A5

 
Coakley joins Solano fair board

By Barry Eberling | From Page: A6

 
.

US / World

Police: Man comes to courthouse in stolen car

By The Associated Press | From Page: , 4 Comments

 
California officials nab 11 in drug ring bust

By The Associated Press | From Page: , 2 Comments

 
Robotic submarine deployed in search for plane

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

Post, Guardian win Pulitzers for NSA revelations

By The Associated Press | From Page: | Gallery

 
Ukraine struggles as east slips out of its control

By The Associated Press | From Page: | Gallery

Police: Utah mom admitted to killing her 6 babies

By The Associated Press | From Page: , 8 Comments | Gallery

 
Blast at bus station in Nigerian capital kills 72

By The Associated Press | From Page: | Gallery

Kansas shooting suspect had no record of violence

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

 
Landmark thermometer to be renovated, relit

By The Associated Press | From Page:

 
Engaged pair, teen athlete among dead in bus crash

By The Associated Press | From Page: | Gallery

Spray-painted fire hydrants costing San Francisco

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

 
.

Opinion

Editorial cartoons for April 15, 2014

By Daily Republic Syndicated Content | From Page:

 
Oh, for the days of Dr. Welby

By Dan K. Thomasson | From Page: A13, 7 Comments

 
 
Pay equity is a tough skill

By Ann McFeatters | From Page:

.

Living

What should I do about my fiancee’s wild sexual history?

By Kathy Mitchell and Marcy Sugar | From Page: , 1 Comment

 
Today in History for April 15, 2014

By The Associated Press | From Page:

Community Calendar: April 15, 2014

By Susan Hiland | From Page:

 
Horoscopes for April 15, 2014

By Holiday Mathis | From Page: B5

.

Entertainment

With $41.4M, ‘Captain America’ holds off ‘Rio 2′

By The Associated Press | From Page:

 
Flavor Flav takes plea deal in Vegas battery case

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

MTV Movie Awards big Hollywood studio plug-fest

By The Associated Press | From Page:

 
Aw, geez, ‘Fargo’ is on TV with Billy Bob Thornton

By Frazier Moore | From Page: | Gallery

TVGrid April 15

By Daily Republic Syndicated Content | From Page: B6

 
.

Sports

Warriors beat Wolves 130-120, secure 6th seed

By The Associated Press | From Page:

 
John Jaso’s pinch-hit HR lifts A’s over Angels 3-2

By The Associated Press | From Page: | Gallery

Hockey title puts tiny Union on the sports map

By The Associated Press | From Page:

 
Warriors’ Bogut out indefinitely with rib fracture

By The Associated Press | From Page: | Gallery

Prep softball: Fairfield drops 4-0 decision to Dixon

By Daily Republic staff | From Page:

 
Prep badminton: Rodriguez rolls to 14-1 win over Davis

By Daily Republic staff | From Page:

 
Haas plans to field Formula 1 team in next 2 years

By The Associated Press | From Page:

A look at 10 things to watch in the NHL playoffs

By The Associated Press | From Page:

 
49er Culliver pleads not guilty to hit-run charges

By The Associated Press | From Page:

Augie’s Longhorns bounce back after miserable ’13

By The Associated Press | From Page:

 
Sun take Stanford’s Ogwumike with top pick in WNBA draft

By The Associated Press | From Page: | Gallery

 
Pistorius accused of staging outbursts at trial

By The Associated Press | From Page:

 
Pro sports becoming more open to paternity leave

By The Associated Press | From Page:

Olympic great Michael Phelps ending retirement

By The Associated Press | From Page: | Gallery

 
Kings-Sharks rivalry resumes in 1st round

By The Associated Press | From Page: | Gallery

 
.

Business

April 15 not much of a deadline for most taxpayers

By The Associated Press | From Page: | Gallery

 
Google buys drone maker Titan Aerospace

By The Associated Press | From Page:

 
US stocks recover some ground on retail sales gain

By The Associated Press | From Page:

Is hot market for IPOs cooling?

By The Associated Press | From Page: | Gallery

 
.

Obituaries

.

Comics

Blondie April 15

By Daily Republic Syndicated Content | From Page: B4

 
Word Sleuth April 15

By Daily Republic Syndicated Content | From Page: B5

Get Fuzzy April 15

By Daily Republic Syndicated Content | From Page: B4

 
Sudoku April 15

By Daily Republic Syndicated Content | From Page: B5

Beetle Bailey April 15

By Daily Republic Syndicated Content | From Page: B4

 
B.C. April 15

By Daily Republic Syndicated Content | From Page: B4

Crossword April 15

By Daily Republic Syndicated Content | From Page: B5

 
Bridge April 15

By Daily Republic Syndicated Content | From Page: B5

Wizard of Id April 15

By Daily Republic Syndicated Content | From Page: B4

 
Rose is Rose April 15

By Daily Republic Syndicated Content | From Page: B4

Frank and Ernest April 15

By Daily Republic Syndicated Content | From Page: B4

 
Dilbert April 15

By Daily Republic Syndicated Content | From Page: B4

Zits April 15

By Daily Republic Syndicated Content | From Page: B4

 
Baby Blues April 15

By Daily Republic Syndicated Content | From Page: B4

Sally Forth April 15

By Daily Republic Syndicated Content | From Page: B4

 
Pickles April 15

By Daily Republic Syndicated Content | From Page: B4

Baldo April 15

By Daily Republic Syndicated Content | From Page: B4

 
For Better or Worse April 15

By Daily Republic Syndicated Content | From Page: B4

Cryptoquote April 15

By Daily Republic Syndicated Content | From Page: B5

 
Garfield April 15

By Daily Republic Syndicated Content | From Page: B4

Peanuts April 15

By Daily Republic Syndicated Content | From Page: B4