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

A bit of intellectual ammunition...

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

by Mary Katharine Ham on 4/23/10

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.

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?

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.