//  7/12/18  //  In-Depth Analysis

By John Paul Schnapper-Casteras, an appellate litigator in Washington, D.C.

In three back-to-back decisions at the end of its most recent Term, the U.S. Supreme Court expanded Fourth Amendment privacy protections to cell phone location data, held that states can now tax online sales, and even called attention to the emergence of cryptocurrencies.  That constellation of choices suggests this might be the year that the Court begins to meaningfully grapple with the constitutional implications of emerging technologies.

Each of these rulings has far-reaching practical implications for nearly every American consumer. Ninety-five percent of Americans today carry a cell phone (with more than three quarters using an Internet-connected smartphone) and nearly four out of five people shop online.  The Court’s decisions will also shape how telecommunications carriers, Internet retailers, and swathes of the financial industry conduct business, engineer new products, and adhere to the Court’s changing interpretation of the law.

While these decisions may profess to be “narrow,” their language and logic suggest that a broader movement is afoot. In one case, the Chief Justice used sweeping rhetoric to warn that  “seismic shifts in digital technology” make it possible to track “everyone[’s locations,] not for a short period but for years and years.” In a case about railroad pensions, a subject that does not naturally evoke the digital age, four members of the Court found themselves ruminating about virtual currencies like Bitcoin. Those justices wondered if such currencies might one day supplant the dollar—and warned that federal statutes should not “be trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.” 

Although these major rulings all came in cases decided 5 to 4, the justices’ concerns about the digital era can be seen across the political spectrum: Chief Justice Roberts wrote the cell phone privacy case (and even Justice Gorsuch, in dissent, expressed related concerns); Justices Kennedy and Ginsburg cast the swing votes in the Internet tax case; and Justice Breyer gave us the Court’s first reference to Bitcoin.  The bottom line is that the justices seem increasingly concerned with how their rulings keep pace with swift technological developments.

What began as a gradual change seems to have quickly accelerated.  Consider how far things have come: just a few years ago, Justice Kagan admitted that the “Court hasn’t really ‘gotten to’ email.” But this November, the Supreme Court finally unveiled a comprehensive electronic filing system. Several justices have revealed that they regularly use social media and other online services: Justice Breyer is on Twitter (he joined to learn about Iran and never tweets, or so he says); Justice Kagan reads legal blogs “every day”; and Justice Thomas’s recent dissents cited Google Books and an online linguistic database. Many lawyers in the Supreme Court bar have even adopted a hashtag of their own (#AppellateTwitter).

This shift comes at a consequential time, with many unresolved issues at the intersection of technology, constitutional law, and statutory interpretation set to face the judiciary in the coming years. These are matters of immense importance for the national economy in a time when society is awash with new Internet-connected devices and services.

This turning point poses two significant questions:

First, to what extent can courts address cutting-edge technological issues by applying law and metaphors from the 1800s, as opposed to fashioning new approaches altogether?  On the one hand, Justice Gorsuch’s recent dissent reasoned that “few doubt that e-mail should be treated much like the traditional mail it has largely supplanted.”  On the other hand, in another case about police use of GPS tracking devices, Justice Alito stressed that “it is almost impossible to think of late-18th-century situations that are analogous,” other than “a very tiny constable.” Moreover, it is not clear what the Founding-era “original meaning” would have been for futuristic concepts like wireless Internet connections over smartphones—or whether some higher level of generality will suffice. When the Supreme Court first considered the warrantless wiretapping of (landline) telephones in 1928, the justices deemed that practice constitutional because the Fourth Amendment referred only to physical examination of homes and tangible goods. A lot has changed since then, both in society and in the law.

Second, how can courts keep up with rapid developments in computing and understand their underlying complexities? This Term featured dozens of tech companies filing a marquee number of amicus briefs on a range of issues, including cloud computing, tax software, digital privacy, and President Trump’s travel ban. The Court should continue to equip itself with the ability to assess technological developments, including through tech-savvy law clerks, regular judicial education, and appointment of counsel. The Federal Judicial Center could also open an office to provide objective technological analysis—akin to what Congress did from 1972-1995. (By contrast, the recent Senate hearings on Facebook featured profound confusion about how the platform operates; perhaps Congress would be better prepared if it had not previously eliminated its Office of Technology Assessment.) Jurists and litigants alike should also recognize the limits of their technical knowledge—and when it may be appropriate to instead rely upon expert testimony.  Justice Scalia, in an otherwise unanimous 2013 decision about DNA patenting, separately concurred on the grounds that he did not really understand the underlying science.

All told, it is too early to expect the Supreme Court to start a Twitter account of its own or accept Bitcoin for filing fees. But this recent trio of opinions is an encouraging sign that the Court is changing the way it grapples with the technological issues that will shape everyday life and constitutional rights in the 21st century.

 


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