Supreme Court Justices Can't Figure Out Email, Completely Mystified By Social Media

by Mike Masnick
Techdirt
Aug. 22, 2013

There are legitimate reasons to avoid email -- such as Ladar Levison of Lavabit explaining his concerns about privacy. And, certainly, you can understand why some more elderly people have avoided email, though if my late grandmother kept up her emailing well past her 90th birthday, it seems like almost anyone should be able to pick it up. But, it's somewhat disturbing to find out that nearly every Supreme Court Justice hasn't bothered to figure out email yet because they haven't "gotten to" email.

"The justices are not necessarily the most technologically sophisticated people," she said, adding that while clerks email one another, "The court hasn't really 'gotten to' email."

Kagan, at age 53 the youngest and most recently appointed justice, said communication among the justices is the same as when she clerked for the late Thurgood Marshall in 1987.

Justice write memos printed out on paper that looks like it came from the 19th century, she said. The memos are then walked around the building by someone called a "chambers aide."

She also noted that Facebook, Twitter and similar services are "a challenge for us."

Though, she does note that when they had to rule on California's law restricting violent video games, a few of the Justices did try some of the games in question, though "It was kind of hilarious."

Sure, old people playing video games, ha ha. Except, as Will Oremus points out, it's really not that funny at all when you realize these nine people are deciding a ton of cases that have a huge impact on the future of technology, innovation and communication. For them not to understand the underlying technologies, how they're used and what they mean is a serious concern:

It does sound quaint and endearing, until you remember that these are the people charged with interpreting the law of the land on issues like online privacy and digital surveillance. No wonder they decided earlier this year that the government spying on people’s emails without a warrant is no big deal. Bet they’d have some strong opinions if the NSA started eavesdropping on people’s chambers aides, though.

It's easy for some people to say that you don't have to understand social networking to rule on such cases, but it's hard to support the more you think about it. These tools are key to open and free communications these days. They are the embodiment of what the First Amendment was supposed to be about -- a free marketplace of ideas. Not understanding how they work and how they're used can really skew how they're viewed via the legal prism. And that should be worrisome. We've already seen in a variety of copyright cases before the Supreme Court that they seem to have a near total blind spot when it comes to how copyright interferes with free expression, in part because they still view it through the antiquated filter of "professional" publishers being the ones doing the speaking, rather than the general public using tools to communicate, converse, debate and express ideas.