December 16, 2010, 11:41 AM —
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.
The Sixth Circuit Court of Appeals agreed with Warshank’s attorneys, move that should put Stallman’s mind at ease somewhat (although a warrant, like the court order would have been presented to Warshank’s ISP and not to him). The ruling didn’t affect Warshank’s conviction, but the case was remanded to the lower court for a new sentence, likely to be lighter than his original 25 year sentence.
So far, there’s no indication that the decision might be appealed all the way to the Supreme Court though that is a possibility. The court recently took up and issued a ruling on a similar Fourth Amendment case regarding text messaging where it ruled that the Ontario, California police department did not violate the Fourth Amendment rights of police sergeant Jeff Quon when it review personal texts (some of which were sexually explicit) sent from a work-issued pager.
Both these cases (and countless others) center around the intersection of law and technology in the 21st century. While not all cases will make it to the Supreme Court, the Court’s decisions in just a few cases can have far-reaching consequences for all manner of legal issues around technology throughout the country. The Fourth Amendment isn’t alone as a focus of technology cases. The Justices have recently decided to take up a patent dispute between Microsoft and Canadian software company i4i. A ruling in that case could have a massive impact on the entire tech industry and how technology patents are viewed from a legal perspective.
This brings us to a fundamental question: is the Supreme Court equipped with the understanding to truly comprehend the technical issues involved in technology?
Justice Stephen Breyer recently highlighted the potential pitfalls in a speech at Vanderbilt Law School while promoting his new book Making Our Democracy Work: A Judge's View. He specifically referenced his reaction to The Social Network, which left him feeling perplexed, adding: "If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... The Social Network, which I couldn't even understand," he said.
It might be easy to posit that Breyer's age (he’s 72) was a factor in his reaction to the movie, Facebook, and technology. An AP story on his comments, however, included the reactions of other justices to technology cases including the reaction of Chief Justice John Roberts, one of the court’s younger members (the most recent appointment, Justice Elena Kagan, is the youngest member of the Court) in the Jeff Quon case. When hearing about the technology behind texting and how message can be stored by carriers, Roberts responded with: "I thought, you know, you push a button; it goes right to the other thing." A similar recent incident referenced is Justice Anthony Kennedy’s confusion about a California law on violent video games, where Kennedy didn’t understand that v-chips in television sets cannot block content from game consoles.
These cases didn’t involve a lot of technical issues and could be easily explained and clarified for the members of the Court. However, it isn’t a stretch to imagine much more complex cases: issues involving net neutrality regulations and bandwidth monitoring between providers (perhaps related or similar to the dispute between Comcast and Level 3), privacy protection or HIPPA violation problems involving healthcare data and one or more electronic medical records systems, corporate espionage cases that involve complicated data forensics as evidence, or privacy cases centered on data mining techniques (both Google and Facebook come to mind as potential defendants).
Decisions in all of these areas (and plenty of others) might come down to very minute technical details and those decisions could have major repercussions across the country and, by extension of the tech industry, around the world. To be decided accurately, they could require some in-depth understanding of the issues – more so than just a casual comprehension of common technology.
Of course, it’s important to remember that Supreme Court Justices don’t operate in a vacuum. As Justice Kagan recently pointed out while talking about how she uses her Kindle (and how Justice Antonin Scalia uses his iPad), there’s a lot of briefs and background that the Justices read and consider on every case. Some of that comes from the direct parties in the case, but a lot comes from outsiders with a vested interest (companies, advocacy organizations, and non-profits among others) in the form of friend of the court, or amicus, briefs. There’s also a small army of clerks to help research, review, and inform each member of the Court on all the technicalities and precedents related to each case.
Then there’s a follow-up question: even if the Supreme Court is able to handle the most technical of cases, is the law? Some laws and, most importantly, the Constitution (along many of its amendments) are over two hundred years old. How do you apply that to today’s technology, some of which could’ve been considered science fiction ten or twenty years ago?
I don’t have the answer to that one – and thankfully that isn’t my job, but it is the job, and primary role, of the Supreme Court. I have to hope and trust that all nine members and their teams of clerks are up to the challenge.
What do you think? Are the nation’s laws and the Constitution able to handle 21st century technology and all the legal questions it poses? Is the Supreme Court equipped to understand technology in-depth enough to accurately interpret the Constitution for today’s America? Share your thoughts in the comments.
Ryan Faas writes about personal technology for ITworld. Learn more about Faas' published works and training and consulting services at www.ryanfaas.com. Follow him on Twitter @ryanfaas.
Thumbnail photo courtesy UpstateNYer
