The case is City of Ontario v. Quon, and the issue was “simply” whether the police department has the right to read personal text messages from an employee using a work page.
(In this case, a pager capable of sending text messages which, honestly, I had never heard of. Are people still using pagers?)
The transcript is a fascinating read. Here are some nuggets from the bench:
- CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between a pager and e-mail?
- CHIEF JUSTICE ROBERTS: What happens, just out of curiosity, if you’re — he is on the pager and sending a message and they’re trying to reach him for, you know, a SWAT team crisis? Does he — does the one kind of trump the other, or do they get a busy signal?
- CHIEF JUSTICE ROBERTS: And would you know where the message was coming from?
- JUSTICE KENNEDY: And he’s talking with a girlfriend, and he has a voice mail saying that your call is very important to us; we’ll get back to you?
- CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing. (regarding the routing of text messages through a communications company before it gets delivered to the recipient).
- JUSTICE SCALIA: Can you print these things [text messages] out?
Most of these comments were by Chief Justice Roberts, who is the second-youngest Justice at just 55 years old. Some of these comments may have been made for the sake of a clear record, and some may have been simply to elicit a few yucks from the crowd, but some of them certainly were truthful. It reveals that some members of the Supreme Court have little idea of what a text message actually is. They appeared to wrangle with the concept of text messages coming in and going out simultaneously; and with the difference between a pager (a device that sends messages) and an e-mail (a specific type of message).
I’m not saying that the members of the Supreme Court need to be computer geeks (I’m happy enough seeing judges with trial experience). But text messages, social networking, video games, and WiFi are likely to be the factual underpinnings for more and more Supreme Court cases as time goes on. If the Court has difficulty understanding those factual underpinnings, the end result could be that they apply the law wrong.
So, this blog post is for those of you who consider yourselves to be technophobes. If you don’t know much about technology, if you still use the word “mimeograph” in casual conversation, if you send more faxes than e-mails, then this is meant for you. Just to be clear — this isn’t a generational thing, necessarily. I know many “older” lawyers who understand the latest gadgets, and many “younger” lawyers who have no clue how to put together a basic PowerPoint.
If you don’t use technology much, you should do each of these things at least once to understand the conversation around you and to stay technologically relevant:
- Play a PC-based computer game and a console video game (something more recent than Pong);
- Open a Facebook account, and post on your wall, connect with a friend, send a message, and chat;
- Open a Twitter account, and update your status, and find others with similar interests;
- Go to a store that sells computers, and ask to see the latest and greatest. Have a salesperson tell you why it is the latest and greatest;
- Use some version of MP3 player (iPod, etc.);
- Use a digital camera;
- Connect your phone to an e-mail system (for this, you need a phone that does more than just make calls);
- Use your phone to send and receive text messages;
- Learn how easy it is to scan something in and e-mail it out; and finally
- Do a video chat.
This is by no means a comprehensive list, but includes some of the most mainstream technologies. You might wonder why some of them are important — are video games really that essential? It’s not whether it is a useful skill, but whether a large percentage of the population is using the technology. Video games, for example, are outpacing movies as a source of entertainment. People who play video games are on your jury, are talking to your kids, and competing with you for business.
So go forth, and do something electronic.