The difficulty some of the Justices had with pager technology in City of Ontario v. Quon yesterday reminds me of a passage in an article of mine on why judges should be cautious about applying the Fourth Amendment to new technologies. In the passage, I argue that judges are particularly likely to make errors in applying the Fourth Amendment to new technology because they are not well-situated to get a sense of the technology, its evolution, and the likely impact of potential Fourth Amendment rules. The argument goes on for several pages, but here’s a taste:
The task of generating balanced and nuanced rules requires a comprehensive understanding of technological facts. [C]ourts generally are not [well-equipped to develop such understandings].The information environment of judicial rulemaking is usually poor. Judges decide cases based primarily on a brief factual record, narrowly argued legal briefs, and a short oral argument. They must decide their cases in a timely fashion, and can put only so much effort into any one case. In some contexts, these limitations do not impose a heavy burden on effective judicial rulemaking. Recall the automobile traffic stop cases. Because judges can readily understand traffic stops, a brief record and narrow argument is generally sufficient to allow judges to create rules governing the specific facts at hand.
In contrast, cases involving new technologies such as wireless networks, public-key encryption, and data-mining technologies raise more complicated issues. Judges struggle to understand even the basic facts of such technologies, and often must rely on the crutch of questionable metaphors to aid their comprehension. Judges generally will not know whether those metaphors are accurate, or whether the facts before them are typical or atypical given the technology of the past or the present.
These dynamics make it easy for judges to misunderstand the context of their decisions and their likely effect when technology is in flux. Judges who attempt to use the Fourth Amendment to craft broad regulatory rules covering new technologies run an unusually high risk of crafting rules based on incorrect assumptions of context and technological practice. The context of judicial rulemaking is unusually conducive to high rates of error when technology is in flux.
Frater Plotter says:
We’ve heard a good deal hereabouts regarding rational ignorance of voters in a republic.
Are you proposing rational ignorance as an explanation for judicial behavior? :)
April 20, 2010, 10:11 pmChris Travers says:
There are two other reasons for caution here:
1) As Roberts pointed to, privacy in cell phone texts may be a generational thing. I wouldn’t want to tie later jurisprudence to the opinions of six wise old men and women on the bench if this is the case.
2) Common law works best when dealing with a lot of cases and incrementally deciding issues. Deciding too much forecloses later analysis for a court.
April 21, 2010, 1:16 pmzippypinhead says:
I don’t think you’re ever going to wean judges (or legislators) off ruling by analogy to older, well-understood paradigms. That’s a basic component of human reasoning. I’m sure that back in the day I wasn’t the only lawyer who went around and around with a judge or two in motions arguments about whether a computer HDD was more like a file cabinet (full of discrete, potentially irrelevant papers) or a bound journal (deemed relevant as a whole) for discovery purposes.
It wouldn’t surprise me if 25 years from now server-based alphanumeric e-mail and text messaging/paging are viewed as little more than historical curiosities, and the holding in Quon will have to be interpreted by analogy – probably bad analogy – like that old “HDD is just like a file cabinet” paradigm judges used to be so fond of.
This brings up the underlying problem that lot of technologies are rather transient. For example, when ECPA/SCA was drafted and enacted in the mid-1980s, the privacy concerns being addressed involved dial-up OLS/BBS services like Compuserve or The Source, and commercial “service bureau” computing environments that got you time-metered remote access to somebody else’s VAX minicomputer for crunching your data. And now we’re stuck with a legislative scheme that doesn’t make a lot of sense when applied to technologies that hadn’t even been invented when the law was passed.
April 21, 2010, 3:37 pmQuon Roundup on Employee Computer Privacy | Compliance Building says:
[...] The Fourth Amendment, New Technologies, and the Case for Caution by Orin Kerr in The Volokh Conspiracy [...]
April 27, 2010, 8:02 amLibrary: A Round-up of Reading « Res Communis says:
[...] The Fourth Amendment, New Technologies, and the Case for Caution – The Volokh Conspiracy [...]
April 27, 2010, 4:28 pmJuan Chustz says:
Did you go to the show in Las Vegaslast spring?
August 12, 2010, 9:35 pm