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Supreme Court Justices Just Don’t Understand Tech

by Alex Lipton, Legal Researcher at Shake

 

Supreme Court Justices Just Don’t Understand Tech

The Supreme Court ruled on the side of old-school technology today — and handed a huge victory to television networks — by deciding that TV streaming startup Aereo’s business model violates copyright laws. Whether you agree or disagree with the Aereo ruling, the fact is that justices have a terrible track record when it comes to understanding modern technology.

They Struggle with Email

We spend a lot of our time at work looking through our inbox. One study suggests that employees spend about 28% of the workweek reading and answering emails. Imagine stepping away from your email inbox for just one day. Can’t do it? How about stepping away from your email inbox altogether? 

You might not believe it, but the Supreme Court justices don’t use email at work to communicate with each other. Justice Elena Kagan, noting that the Court hasn’t really “gotten to email”, recently explained the justices preferred method of communication: they write a memo, printed on ivory paper, which a “chambers aide” will hand-deliver to the intended recipient. We admit — it’s classy — but not exactly efficient. As Justice Kagan described it, things at the Supreme Court look the same as when she clerked three decades ago. 

They Struggle with Smartphones

Several recent cases in the Supreme Court have shown just how little the justices understand about modern smartphones. Consider Chief Justice Roberts (the second-youngest member of the Court at 59 years old), who recently insinuated that a person carrying two cell phones might reasonably be suspected of dealing drugs. In that particular case, Chief Justice Roberts refused to recognize that individuals might own multiple cell phones for a variety of reasons, or that many lawyers sitting in the Court at that very moment had two cell phones in their pockets.

Chief Justice Roberts does not stand alone in his confusion about the modern smartphone. In a recent case involving warrantless cell phone searches, one Supreme Court advocate explained to the justices that while some physical items can be subject to a warrantless search after an initial arrest, cell phones should be excepted given their massive storage capacity. Justice Samuel Alito responded by asking, “What if the person had on his person a compact disk?

We’re not sure about you, but we haven’t heard the term compact disk (also known as a “CD”) since the early 2000’s. While Justice Alito’s contention — that there may be other items with large storage capacities that the Court should consider when deciding the case — proves relevant, the comparison between modern smart phones and CDs does not. The iPhone 5S can store up to 64GB of information. That’s more than 80 times the amount of information than a standard 800MB “compact disk” can handle. The difference matters when determining the privacy rights of arrested individuals, even if it doesn’t matter to Justice Alito.

They Struggle with Text Messages

The justices also displayed their confusion surrounding text messages in a recent case determining expectations of privacy for employees using a city-issued pager. Justice Anthony Kennedy wondered what happens when you receive a text message at the same time that you are sending a message, asking, “Does it say: ‘Your call is important to us, and we will get back to you?’” Chief Justice Roberts also seemed confused about the fact that texts are routed through service providers, saying, “Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button, it goes right to the other thing.” Let’s just hope that Snapchat doesn’t appear in the Court’s docket any time soon. 

They Struggle with…Just About Everything Else

Unfortunately, the list goes on and on. Justice Sotomayor recently referred to our favorite movie-streaming service as “Netflick.” Justice Kagan collectively described Dropbox and cloud storage as “iDrop in the Cloud.” Justice Scalia believes that anyone can receive HBO for free (and no — he’s not talking about BitTorrent). 

To be fair, it’s not the job of Supreme Court Justices to understand how all modern technology works; that’s one of the reasons why they have advocates and amici briefs to fill them in. We might even prefer judges who lack technical expertise; otherwise they might get lost in the minutiae and craft an opinion that does not broadly apply to similar issues. But even when given technical information about the companies involved, judges often misunderstand the technological implications at stake. All the more reason for you to use clean and simple contracts for your tech company.  

Alex Lipton is a Legal Researcher at Shake and a Mitchell Jacobson J.D. Scholar at NYU School of Law. He also serves as Vice President of Operations for the InSITE Fellowship. He writes about legal issues affecting early-stage companies. Find him on LinkedIn or on Google+.