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There was an interesting exchange a few days ago during a case that the Supreme Court was hearing about an employee's right to privacy while texting.

Kashmir Hill

Today, the Supreme Court heard the case of the California SWAT officer who sued the city of Ontario for violation of his privacy after his employer reviewed the messages he sent on his work-issued pager. He had been using the pager for personal text messages — notably for steamy SMSes to his estranged wife and to his girlfriend with whom he worked. (More background here.)

At first glance, the case might seem like an easy one. Of course the police department has the right to look at messages sent on an officer’s work pager, right?

But then think about it in your own context. Do you assume that your employer is reviewing every text you send from your work phone? Is it fair for your employer to look at every email that goes out from your work computer? Does it matter whether it’s going from your work account or your personal gmail account?

I know some of the quirks that our Supreme Court justices have are great fun for reading and conversations like this one via Jeff Toobin:

JEFFREY TOOBIN: He’s gone now, but probably Souter. He was so odd. No cell phone, no computer, didn’t like electric light, ate an apple (including core) and yogurt for lunch every day. And a brilliant guy. What’s not to like?

However, these idiosyncrasies aren't so cute when it comes to the law.

If our Supreme Court justices don't know the difference between a pager and an email--how can they render important decisions in today's tech savvy world?

According to this post, at DC Dicta, the Court asked some questions of the lawyers which, well, the justices’ kids and grandkids could have answered while sleepwalking.

According to the story, the first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)

At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

This is just horrifying.

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102 Comments
real_earl's picture

god help the first Blogger that ends up in front of these wizards ... hehhe!
"... What exactly were you doing in that Bog anyway ...?"


I'm Boycotting NewsCorp! Heres what not to buy: http://www.cjr.org/resources/index.php?c=news...

ricky's picture

It was the Borg. Blog is just where I keep my diary.


"3 protesters barely on our property chained to a...drum...not causing any problems so I told the guys to just monitor them and let them freeze."
Shocking document revealing Fed attack on Occupy Portland 11/6/11

The messages are carried through the air at the speed of light by magic fairies called Isps. Emails travel really, really fast through a series of tubes, called intertubes (not innertubes).

WASF.


"Someday somebody related to some of these sufferers, these victims, these collaterally damaged souls, may try to kill you. And I have to tell you, I think you’ll have it coming." - Christopher Cooper

And somebody wake up Clarence.


"Someday somebody related to some of these sufferers, these victims, these collaterally damaged souls, may try to kill you. And I have to tell you, I think you’ll have it coming." - Christopher Cooper

real_earl's picture

things his grandkids are doing with their camera phones ... ?
makes the whole coke-can thing a little um ....


I'm Boycotting NewsCorp! Heres what not to buy: http://www.cjr.org/resources/index.php?c=news...

Disgusted Liberal in Kansas-Rogerdodger-the-dick-massager's picture

you are talking about"Sexting" and the like but at the risk of sounding out of touch,"coke can thing???

can finaly break free and demonstrate his area of expertise.
At least relating to content.


"3 protesters barely on our property chained to a...drum...not causing any problems so I told the guys to just monitor them and let them freeze."
Shocking document revealing Fed attack on Occupy Portland 11/6/11

miss_kitty's picture

"is that ur pube on my cokez? lolz"

real_earl's picture

I was feeling particularly old there for a sec ...

Annnnnnnn' here come the wiki:
http://en.wikipedia.org/wiki/Anita_Hill


I'm Boycotting NewsCorp! Heres what not to buy: http://www.cjr.org/resources/index.php?c=news...

Disgusted Liberal in Kansas-Rogerdodger-the-dick-massager's picture

LMFAO...forgot about the whole pube on the coke gag....Anyone else recall the "Long Dong Silver" biz????

ricky's picture

for the explicit reference.


"3 protesters barely on our property chained to a...drum...not causing any problems so I told the guys to just monitor them and let them freeze."
Shocking document revealing Fed attack on Occupy Portland 11/6/11

Handypants's picture

"Chief Justice John Roberts asked what the difference was “between email and a pager?”"

And this is the young guy on the court?

Mary Kate or Ashley Olson could school the Chief Justice about communications?

What country are we living again?


"I know that there are people who do not love their fellow
man, and I hate people like that!
" ~ Tom Lehrer (1928 - )

miss_kitty's picture

does he store his head up his ass? Oh. nevermind.

cadfile's picture

Your pager is waiting for a call from 1985

I was really amazed at how dense Roberts was as he is really fairly young compared to the elders of the bunch,go figure.

real_earl's picture

dont tell anybody ...)


I'm Boycotting NewsCorp! Heres what not to buy: http://www.cjr.org/resources/index.php?c=news...

Handypants's picture
...

I just KNEW those white shoes meant something.


"I know that there are people who do not love their fellow
man, and I hate people like that!
" ~ Tom Lehrer (1928 - )

calgarylady's picture

Paging Senator Ted Stevens, Old Geezer IT Support Ltd ...

These dudes need help with their series of tubes STAT!

ron's picture

that they are worthless. They don't do any of their own research and they rely on clerks to research their cases. Then they write their opinions which is not based on anything they know for fact.

do not usually write their opinions, either. They may have a clerk read them the research, then they may FORM an opinion, then their clerk writes it. They probably have final approval, but that's what I tell myself to make me feel better about all this.

miss_kitty's picture

I assumed everything I did on office time was the boss's. Including my phone calls and emails. Always clean. Why people think the pager/phone/computer/email account/whatever that they get from work, for work is for personal use and personal messages on work equipment are private, are nuts.
I got personal emails and calls at work, but I always conducted that part of my time as though it was work. I never had a problem.

Handypants's picture
...

I think that is called ethics - an old nearly obsolete concept.


"I know that there are people who do not love their fellow
man, and I hate people like that!
" ~ Tom Lehrer (1928 - )

miss_kitty's picture

that people do private, extremely sexy private crap on work equipment, and expect it to be their private business. Especially when we see how this shakes out from time to time. They must think they won't get caught.

I'm also amazed at companies that discuss illegal moves and 'shitty deals' in emails. When we were going to do something that might get us in trouble or the boss sued, always talked face to face. No phone chat, no emails

Business and personal are different and should by and large be kept separate. A business does a have a right to review its property.

Shadowgm's picture

"... don't ever send anything you wouldn't want your mother or your news director to see."

There's a story from a local station where an anchor had sent a steamy letter to his girlfriend. What the anchor didn't know was that the draft of the letter went to a 'DEAD' queue that was not, initially, protected access - mostly because with the new system, it was felt that news writers and producers should be able to easily retrieve copy they'd accidentally deleted.

So the love letter got posted on the bulletin board, much to the anchor's consternation. He tore it down and threw it away.

And it reappeared.

He tore it down again, tore it into pieces.

It came back.

Wash, rinse, repeat.

All because the data was accessible on the newsroom computer.

This story isn't anything like it appears if you read the transcript to put the comments in context.

Read pages 28-30.
http://www.supremecourt.gov/oral_arguments/ar...

From a legal standpoint, is there a difference between an e-mail and a pager message? Do they function in the same manner technically?

If the pager is direct point-to-point communications, then it could very well be protected as would a telephone call under the 4th Amendment, and you'd need probable cause to intercept/monitor those messages.

The same goes for 'what happens if the line is busy'? It may sound technically incompetent/clueless, but I can see this as determining where the message is sent, how it is stored (i.e., who owns the equipment on which it is stored), etc. An e-mail would be stored on a server owned by the city/police department; a pager message would be stored on the servers of the paging/mobile service. (The service used by my employer at one time would 'store' messages if I was outside the service range being paid for, and then my pager would get blasted with a bunch of out-of-date messages and news updates.)

Well said, Shadow. (polite applause)

At one point the Supremes were trying to clarify the modification of department policy regarding computer, email, and internet usage.

Ginsberg asks:

"...if an employee is told now e-mails aren't private, so we’re warning you, we can monitor them, wouldn't such an employee expect the same thing to apply to the pager?"

Then they get into the discussion of the differences between the electronic mediums, and expectation of privacy.


I pledge allegiance to the Constitution of the United States of America, and to the republic which it established, one nation from many peoples, promising liberty and justice for all

Thank you for posting this, it's actually fascinating.

Karen's picture

Thank you for posting this, and for saving me from having to find it and implore people to read the actual conversations that were taking place. These justices only seem out of touch when taken out of context.

First of all, Kennedy's remark about a text message reading, "Your call is important to us . . . " was a joke, and it received its intended laugh.

As to Justice Robert's seemingly ridiculous question, it went to the nature of the electronic transmissions used, which could very well have been relevant to the legal question they are being called upon to answer. No, a child could not answer that question, and frankly, neither could most of us. We're all familiar with the utility of e-mail and pagers (not to mention television, cell phones, dishwashers, refrigerators, etc.), but most of us do not really know how they work. They're black boxes, indistinguishable from magic except that we trust that scientists, not sorcerers, devised them using expertise we don't have.

To accuse Justice Roberts of not possessing the layperson's common understanding of the difference between a pager and an e-mail is like accusing an evolutionary biologist of not knowing basic taxonomy when he asks, "What's the difference between a whale and a hippo?"


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

Ya know what's really bad? The link to the transcript appears in the comments under the original story, which has been referenced repeatedly in the last week. This story should have gone nowhere.

Karen's picture

People here are not only chastising the judges without knowing what they meant, they're even predicting the ruling based on the judges' lack of common knowledge. And very few will actually read the transcript you provided, the one provided by someone on the original story.

Besides, even without the context, it should be kept in mind that some questions that have seemingly easy answers are rhetorical. Appellate court judges often ask questions not because they don't know the answer, but because they do. They're often using a Socratic method to inform the attorney of their leanings in the case, and implicitly instructing them on how to tailor their arguments.


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

Pocatello's picture

Why do I suspect that someone who is familiar with Clarke's Laws is at least conversant on how a lot of things work?

Clarke's Laws:

1. When a distinguished but elderly scientist states that something is possible, he is almost certainly right. When he states that something is impossible, he is very probably wrong.

2. The only way of discovering the limits of the possible is to venture a little way past them into the impossible.

3. Any sufficiently advanced technology is indistinguishable from magic.

Karen's picture

Yeah, I plagiarized a bit from the third law there. :)

I'm not sure what you're saying, though.


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

Pocatello's picture

It was meant as a compliment. Wide range of information/knowledge etc.
And you skipped the neener neener look how dumb meme to point out that there where some important considerations.

fiver's picture

There is a bipartisan consensus that the government should be able to electronically spy without probable cause. C&L never posted about it, but the Democrats overwhelmingly endorsed The Patriot Act recently. The problem, at least for the Court, is that pesky 4th Amendment and the surrounding body of law. But if they can claim not to understand the new technology, then precedents simply don't apply.


Corruption favors the wealthy.

Pagers are still being used, wow, that's so last century.


Bite my shiny metal ass.
http://www.startalkradio.net/

Kreskin's picture

With this " Supreme " court that ain't , we are in deep crap folks .As for privacy at work ,like Kitty said , very simple , do not use company anything for personal use , period . T'is a no brainer .


"The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all."

Disgusted Liberal in Kansas-Rogerdodger-the-dick-massager's picture

don't dip your pen in the company ink, don't shit where ya sleep ,don't ya get?

capnmike's picture

never in their wildest dreams did the Founding Fathers imagine the technological milieu of today's society, nor the fact that it would be a generally bad thing to have one entire branch of the government presided over by a bunch of OLD FARTS!

hearty judge might have 10 years on the Court, but 28 years? I don't think so. SCOTUS needs term limits.

Disgusted Liberal in Kansas-Rogerdodger-the-dick-massager's picture

Hale and Hearty, were they anything like "Laural" and "Hearty"?

Shadowgm's picture

"Ale, me hearties!"

Aaarrrggghh, hoist the jolly roger matey!


Bite my shiny metal ass.
http://www.startalkradio.net/

Annaleigh's picture

*raising eyebrow*


"The greatest tyranny is censoring information in order to be better able to control people." - Cristina Saralegui

Yarr, the world is mine. ALL MINE. Bwahahahahahaaa


Bite my shiny metal ass.
http://www.startalkradio.net/

savannah43's picture

reference? BTW, "hale and hearty" would have been an appropriate reference back then. Get it?

Disgusted Liberal in Kansas-Rogerdodger-the-dick-massager's picture

I like to put an "R" in SC(R)OTUS

Why not just say "young cod?"

Kreskin's picture

The entire government top to bottom should have term limits , obviously they'll never let that happen .


"The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all."

User Loser's picture

They thought that they would die of faster. I don't think they envisaged modern medicine.

Guess what, the one who pays the bills has a right to what's on the device, kinda like how companies have every right to see what is written on e-mails using their infrastructure and using bandwidth that the company pays for.

That said, wow, can't wait until these guys are presented with some fun communications law material :)

Shadowgm's picture

Roberts' question about the difference between an e-mail and a pager could be ESSENTIAL to the case.

An email composed by the officer is done on a computer owned by the department. It is sent via a server that is, in all likelihood, owned/maintained by the department or the city. If it is a personal laptop set up to use an official e-mail, that's also another dimension.

A pager message, while it may be composed on a device owned by the department, is sent via a server that does not necessarily belong to the department.

But the department is charged based on the amount of information sent to that server by the department-owned item.

Shadowgm's picture
So?

True, and it can ascertain any PUBLIC information available to account holders, such as numbers called ... but not the actual contents of such communications, which may be protected by the 4th Amendment.

I tend to think that the company may have been at fault here, but that the department was perfectly within their rights to do an audit such as this. I suppose the department could have obtained consent to get character length/content information for the necessary audit that they were doing. On the other hand, you do have the fact that these are 24/7 on call SWAT members who had these pagers for a reason - off-duty doesn't exist in the same manner as most.

The exchange between Breyer/Sotomayor and Dammeier are very telling, I think. The attorney admits to some level of reasonable-ness for a nearly analogous situation, but then seems to veer off in a VERY different direction of reasoning.

All that is to say is that this is bloody fascinating, and I tend to disagree with the justices as being techno-dumb. In fact, they REALLY seem to be exploring the very nuanced parts of this case.

Gazenthia's picture

I don't know all of the details about pagers and I'm a lot younger than these guys. It's something that just hasn't been particularly necessary or relevant to what I do in life. As for this comment:

"Do you assume that your employer is reviewing every text you send from your work phone? Is it fair for your employer to look at every email that goes out from your work computer? Does it matter whether it’s going from your work account or your personal gmail account?"

I absolutely do, because they ARE, and yes it is fair. It isn't my personal property to do with as I please, it belongs to the business and what I do can/will be tracked right back to them. If something awful happens and the IP or laptop/whatever belongs to Company X, what do you think will happen?

The only gray area here seems to relate to personal email accounts and use of a laptop/cellphone offduty.

At least they are not dl music/movie torrents. (as if they know how to do that)


Bite my shiny metal ass.
http://www.startalkradio.net/

fiver's picture

Then he [Scalia] asked whether they can be printed out in hard copy.

That may be the essence of a "distinction" for Scalia & crew. The Constitution protects "papers." If the communications are not papers; they're not protected. And, of course, intentions of the framers, blah blah blah.


Corruption favors the wealthy.

Could be, but I think its more like 'publication' for purposes of libel.


I pledge allegiance to the Constitution of the United States of America, and to the republic which it established, one nation from many peoples, promising liberty and justice for all

Karen's picture

Actually, no, Scalia is asking about the ease with which what is communicated electronically between two specific machines can be printed and distributed to other people, even without the use of those specific machines or electronic transmissions. It goes to whether we can reasonably expect privacy, and how much so, when communicating this way.

And the Fourth Amendment protects all "persons, houses, papers, and effects," which is pretty sweeping language. Jurisprudence that would have limited the Fourth Amendment's protections to a literal, finite list of objects under those categories has been rejected, and Scalia would concur. (He is not a strict constructionist, by the way.)


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

fiver's picture

Because you quite validly made the point below that most people know next to nothing about the technical details.

So how would these technical details (of which most people are unaware) affect anybody's expectation of privacy?


Corruption favors the wealthy.

Karen's picture

Because you quite validly made the point below that most people know next to nothing about the technical details.

So how would these technical details (of which most people are unaware) affect anybody's expectation of privacy?

Fantastic question! I think that the fact that most people are not generally aware of these details should affect the judge's rulings. I think such general knowledge, or lack thereof, should be a part of the equation when determining whether a person reasonably expects privacy. (And I don't know that all the justices would agree with me. They very well might not.)

But I don't necessarily think the lack of knowledge is dispositive. For instance, let's say you are having a conversation with your friend in a public park. You don't have much of a reasonable expectation of privacy when speaking in a public park. If you are displeased about being overheard by a passerby, well, you probably should have waited to have the conversation in a private place.

Now let's say that you weren't overheard by a passerby, but by a detective using a device he points in your direction from afar. Can you reasonably expect privacy from him?

It's a difficult question, considering that you are talking out loud and in public. Some would say, hey, you emitted words into the public ether. It doesn't matter that someone else heard them, no matter how he picked them up. Others might say that the detective's proximity to you matters. At which point an argument might erupt about precisely how the device works, and how far away he must be in order to use it.

Let's change the scenario a little again: Suppose you find out that the device he pointed at you did not actually pick up your spoken words at all. Instead, it reads your lips, and then reads your brainwaves, and puts two and two together to figure out what you said. Would that function change the way you think about your reasonable expectation of privacy when talking in public?

Whether I will agree with the decision the Court renders remains to be seen, but I don't think the Justices are asking silly questions, and they're certainly not out of touch with the basic functions of pagers and e-mail. And I would rather they ask as many questions as they can in the hearings in order to get as full a picture as possible. (One of the things I hate about Justice Thomas is his penchant for just sitting there, and asking nothing.)


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

fiver's picture
~

Thanks Karen. You made my day :)
I thought we were on the same page for this one.


Corruption favors the wealthy.

ysbaddaden's picture
)O(

Remember a few years ago when repugs were outraged, outraged I tellz ya, outraged that David Souter admitted doing some of his own research online? Instead of admiring a powerful man doing some of his own research, they were excoriating him about it.

It's like these doofuses in Congress, supposedly trained in the law all, weren't aware that Westlaw and Lexis is available online...


Diabolus est Deus Inversus

functioning lawyers. They do the majority of the writing.

bushputz's picture

...during vetting for the Supreme Court, someone should check to make sure the candidates have grandchildren. Then they would have advisers for all those pesky tech questions.
As an added bonus, maybe they could get the VCR in the deliberation room to stop flashing 12:00...

Setting the time on the VCR after a power outage while my parents fought over how to set the time on the VCR and then waiting to see when they would figure out that it had "set itself"...


"The greatest tyranny is censoring information in order to be better able to control people." - Cristina Saralegui

unfair, that's because I was a child when pagers were more popular, and now I never see or hear about pagers anymore. Shit, I don't even see phone booths anymore.


"The greatest tyranny is censoring information in order to be better able to control people." - Cristina Saralegui

Karen's picture

Okay folks, tell me . . . what is the difference between a pager and an e-mail? In your answer, you are not allowed to use either the word "pager" or "e-mail." And you're not allowed to say, "One's a small box that beeps at you, and the other is a letter that is delivered electronically to your computer." Because that's not what I'm asking. I want to know the essential difference between the two kinds of electronic transmissions. How does the system of e-mail transmit and receive its messages? And how does the system of a pager transmit and receive its messages?

And what does happen when two people try to text each other simultaneously? Or three people? Is there interference involved? Would the communications be affected in any way? Could a text be misdelivered? How does texting work anyway? Answer scientifically, keeping in mind a layperson's reasonable expectations of privacy in your answer.

And to what, precisely, is a service provider going to see when you type and e-mail or a text message? Is there a chance your service provider is reading your e-mails? Is that a violation of privacy? Or is it sometimes necessary in the course of running such an operation?

Y'all got your easy answers that a child could provide? Really?


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

mudshark's picture

A reasonable expectation of privacy is the key phrase we're looking for Karen.
Btw, Hi Karen.
Regardless of how it's transmitted or even if it's "snail mail".
I would say that there is no difference.
Especially, since it takes a warrant and probable cause to gain said warrant to wire tap a phone.
I really don't know, I'm a layman.:)


What is your conceptual, continuity?

Karen's picture

Oh, of course the ultimate legal question is the reasonable expectation of privacy. That's not being contested.

My point is that people are making out Justice Roberts to be an out-of-touch buffoon who couldn't even distinguish between a pager and an e-mail if the two were laid out in front of him. Like he never uses e-mail and has never heard of pagers. That's not what he was asking, though that's the gist of C&L's post.

People are commenting to the effect that these questions are horrifying because any five-year-old should know the answers. Not true. My point is that these questions are not what they seem. They go deeper than their face value when you read the actual transcript (which isn't that long). We're making fun of the judges, and looking like fools in the process.


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

mudshark's picture
OK.

So, we're talkin about teh intertubes?:)
Just kidding.
I'm pretty sure that in this day and age, the SC Justices are using the intertubes.
But, with hackers and security, I would think that they would be leery of using it.
Even I use these damn things.
And I thought I was one of the last to get into it.
You know you're behind when a 9 year old knows more about these things than I did.

As for the reasonable expectation of privacy for this cop.
It doesn't exist. It was provided and payed for by the PD.
They can do what ever they want.

As for the SC Justices. They were yanking someones chain. They had to be. They're not that out of touch. Not with so much info at their finger tips.( research)


What is your conceptual, continuity?

All regular internet and phone traffic can be read. If you don't want that you need to use encryption. Only the sender and the receiver has a key to decrypt the message. But you need a strong key.


Bite my shiny metal ass.
http://www.startalkradio.net/

Karen's picture

So, given that answer, is it a horrifyingly stupid question to ask? That's the gist of C&L's post here. And we're all making fun of the questions. Face slaps for just how out of touch it is to ask such a thing.

Lookie there. We need to encrypt our messages if we don't want them read by others. The legal question that follows is, "Is it reasonable to expect privacy without encrypting?"

The judges aren't out of touch and asking stupid questions. They're doing their jobs.


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

Well, it can be read. If it's legal to do so i can not tell.

Usually a ISP does not give any info on there clients unless something "criminal"

Countries espionage units are probable not hold to any law at all. not sure about that. But think Echelon


Bite my shiny metal ass.
http://www.startalkradio.net/

There isn't any real difference for the most part. They are transmitted as digital signals over the SAME infrastructure, often times used completely interchangeably.

Karen's picture

I'm not suggesting that the answers aren't out there. Just that the questions aren't stupid and indicative that the judges are operating in some netherworld completely removed from the average person's experience.

My point is just that these questions are relevant, important, and can't be answered the way a five-year-old would.

But from your earlier posts, I know you already agree with me. :)


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

Oh, no, I'm actually explaining it, here :)

The difference between phone communications and computer communications become less and less every day. 3 and 4G? Digital wireless standards that transmit voice and data on the same stream? That's the two things coming together in one!

I just like seeing people being legitimately curious and reading the actual court transcripts to see just how amazingly deep this case is, and not just taking the 20 second, 24/7 media cycle sound byte!

We're supposed to be talking about the expectation of privacy. The technical details only seem to matter as a diversion from that standard. When the Court talks technical details, they're looking to further limit privacy. You know, like when it somehow matters whether the warrantless eavesdropping device physically penetrated the curtilage or not.

Scalia is telegraphing. He's looking to distinguish, and issue avoidance and manipulating technical details to work in his favor are among his gifts.


Corruption favors the wealthy.

Karen's picture

I won't argue with you about Scalia's ability to find differences that do not really make a difference. I'm not a fan of his.

But I don't think the details are irrelevant. Whether an eavesdropping device, to use your example, amplifies sound waves already emanating outside someone's home or enables an actual invasion of someone's home is very important.

How could it not be to determine whether someone reasonably expects privacy?


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

. . . unless the person whose expectation we are examining is aware (or should be aware) of the technology and consents. We need a warrant for a bug under the coffee table but not for super-sound-amplifier-gadget that can do the same thing from a mile away?

Those distinctions make the expectation of privacy irrelevant.


Corruption favors the wealthy.

We need a warrant for a bug under the coffee table but not for super-sound-amplifier-gadget that can do the same thing from a mile away?

Those distinctions make the expectation of privacy irrelevant.

I think I understand what you're saying, and hey, I suppose there's an argument to be made that the police should always get a warrant for any sort of eavesdropping on any activity that takes place inside private property. Such a bright-line rule would not really bother me, but the law seems to have no affinity for my brand of civil libertarianism.

But I still don't think the details of how the electronics work are irrelevant. I think, for instance, there is a difference between a cop's using binoculars from across the street to look at contraband you have placed on your open windowsill, and the government's using an space satellite with an MRI function to get an image of the whole inside of your house to see the very same item on the very same windowsill. I think I can reasonably expect privacy from the latter invasion. The former? I'll at least say the difference in technology matters.


Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?

fiver's picture

Does it still matter?

Something on the window sill is observable without binoculars or aerospace technology, and we know this - hence the lower expectation of privacy.

The expectation must be judged from the perspective of the person whose privacy is being invaded.


Corruption favors the wealthy.

savannah43's picture

"reasonable" expectation of privacy with each of these devices?

At least you have to know how to program the clock on the VCR so it doesn't blink 12:00 all the time. :p


Bite my shiny metal ass.
http://www.startalkradio.net/

fiver's picture

Gotta link?

Not just for how to do the clock thing, but also for where I can find some of those VHS tapes :P


Corruption favors the wealthy.

Sorry, i only know how to program a video 2000. :)


Bite my shiny metal ass.
http://www.startalkradio.net/

calgarylady's picture

I have some cool Beta tapes from back in the day ... real antiques ;)

fiver's picture

. . . they might fit perfectly in my eight-track caddie.


Corruption favors the wealthy.

calgarylady's picture

Love those 8-tracks!

Speaking of old times, does anyone remember the C&L thread that had the picture of a rusty old Maverick with souped-up fancy tires?

For some reason, I was thinking about it the other day. Gave me a laugh .... ;)

Woo betamax, lol.


Bite my shiny metal ass.
http://www.startalkradio.net/

savannah43's picture

unreasonable expectation of privacy? This is a loaded question. I cannot wait to hear the answer from on high.

Are you asking me? Living in a bunker with nothing else but a Atari 800. ¿Qué


Bite my shiny metal ass.
http://www.startalkradio.net/

savannah43's picture

.

Charles Babbage would dig that shit yo!


Bite my shiny metal ass.
http://www.startalkradio.net/

Pocatello's picture

At least a basic understanding of microwave/laser technology and the knowledge that your voice will vibrate window glass.

an ex post facto defense for the illegal wiretapping of BushCo.

Winski's picture

John:

You are right on the money here... It's clear that most folks, especially Roberts, Alito, Scalia and Thomas on the court are living in a bubble with walls so thick they will never see reality again.

This takes me back to a speech that I heard John Perry Barlow (an amazing futurist and co-founder of EFF) give at an RSA meeting in mid-1996 in San Jose.... He has just returned from Davos Switzerland and the annual Economic Forum meetings there and was reacting to the recent passage of the Telecommunications Act of that year. He had just issued his Declaration of Independence of Cyberspace. He talked about this level of clueless bureaucrat and the innate harm they would cause us over a very short period of time. He also articulated how the harm would actually get WORSE as our industry matured and the things we had to do to make sure we guarded against them at all costs.

Given the clueless nature of the Supreme Court nowadays (and the clueless leanings seem to roll downhill), it's even more important since it seems we are at another inflection point with the action taken today by Apple and the Gizmodo editor... This action, which should be declared illegal as soon as tomorrow and his property returned, could have ramifications for bloggers and 'other' or 'real' journalists - world over... both negative and positive but as weird as the courts have become over the last 10 years, who can tell...

Although it's to ugly and LONG to articulate here, the actions of the local CA courts and the 9th circuit in San Francisco over the next year or so may get REAL strange....

They fail the pragmatic test, they have no way of comprehending the consequences of their decisions.

ChescoRes's picture

But then think about it in your own context. Do you assume that your employer is reviewing every text you send from your work phone?

Yes, and I use that phone accordingly.

Is it fair for your employer to look at every email that goes out from your work computer?

Yes! It's not my computer. Plus, this was explained to me when I started working here.

Does it matter whether it’s going from your work account or your personal gmail account?

Do you mean my employer reading something I sent through Hotmail on my work computer? That's a bit more of a grey area, but if there were a message I absolutely wanted to keep private for some reason, I wouldn't use my employer's hardware or email account.

I have both a personal phone and a personal computer, not too mention multiple web based email accounts. It's not a question of whether you send personal messages, it's just about knowing with what hardware and from what account you send such messages.

You're complaining about the SC's lack of technical saavy, well this is part of living in the modern technical world too.

There's nothing supreme about this court. Except its ignorance.

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