The Supreme Court and technology - are the Justices ready for 21st century cases?

More and more technology cases are heading to the Supreme Court. Do the Justices understand technology well enough to render accurate decisions in highly technical cases?

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Yesterday, I looked at some of the criticism of Google’s Chrome OS, including comments by Richard Stallman (Free Software Foundation and GNU founder). Stallman criticized Chrome OS as “careless computing” because it relied completely on cloud services and storage for all documents. His primary concern was privacy because government and law enforcement investigators could demand access to those documents from the cloud vendor (such as Google where Google Docs are concerned) without the creator(s) of the documents even being aware of the investigation.


Stallman particularly noted that such searches of personal and/or business documents might even proceed without a warrant and that the government might encourage this model as a way of keeping tabs on citizens. While I think the latter of those two concerns leans towards the paranoid and conspiracy theory way of thinking, he does have a point that whenever data of any kind is stored on or transmitted through a third party, investigators can access it without the creator or other users knowing about it. The same concerns can apply to emails, social networking posts and messages (including those marked as private by security settings), and text messages.


All of this creates a confusing legal picture when it comes to rights guaranteed under the Fourth Amendment (which protects against unreasonable search and seizure). Fourth amendment cases are popping all around the country and different courts are issuing varying decisions.

One recent case involves Steven Warshank, the man behind the Enzyte “natural male enhancement” pill. Fraud concerns about claims of Enzyte's claims and monthly subscription practices led the FTC to look into the matter, which ultimately included both postal and FBI investigations and resulted in Warshank being convicted of 93 counts of conspiracy, fraud, and money laundering.


Warshank’s attorneys appealed in both his criminal case and a civil case, claiming that his Fourth Amendment rights were violated when emails obtained through a court order rather than a warrant were used in both cases. A court order is much easier to obtain (and can be used for a variety of other functions beyond obtaining evidence) than a warrant because the burden of proof investigators must present to a judge is much lower.

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