Supreme Court justices prefer distance from technology questions

WASHINGTON — At the Supreme Court, technology can be regarded as a necessary evil, and sometimes not even necessary.

When the justices have something to say to each other in writing, they never do it by e-mail. Their courthouse didn’t even have a photocopying machine until 1969, a few years after “Xerox” had become a verb.

So as the legal fight over the NSA’s high-tech collection of telephone records moves through the court system, possibly en route to the Supreme Court, some justices already are on record as saying they should be wary about taking on major questions of technology and privacy.

As Justice Elena Kagan understated last summer, “The justices are not necessarily the most technologically sophisticated people.”

The wariness shows up in rulings, too. When the court in 2010 upheld a police department’s warrantless search of an officer’s personal, sometimes sexually explicit messages on a government-owned pager, a 1980s-era technology, Justice Anthony Kennedy suggested caution. He wrote, “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

Clear or not, the implications of technology are increasingly relevant. Constitutional protection against the prying eyes of government, without a judge’s prior approval, is embodied in the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Last month, U.S. District Judge Richard Leon of Washington ruled that the NSA’s phone-records collection program probably fails that test and is unconstitutional. Leon called the program “Orwellian” in scale. The Obama administration is expected to appeal the ruling.

Complicating matters, 11 days after Leon’s ruling, U.S. District Judge William Pauley III of New York declared the NSA program legal in dismissing a lawsuit filed by the American Civil Liberties Union. In addition, legislation in Congress and possible administration changes could alter NSA surveillance and affect the court cases.

Still, many people expect the Supreme Court will have the final word on the program, especially if other appellate judges agree with Leon.

Among those who think the Supreme Court will weigh in is Justice Antonin Scalia, who addressed the topic in July in a question-and-answer session with a technology group. He didn’t sound happy about the prospect of such a ruling. Scalia said the elected branches of government are better situated to balance security needs and privacy protections.

But he said that the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without a judge’s approval.

“The consequence of that is that whether the NSA can do the stuff it’s been doing … which used to be a question for the people … will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” he said.

Scalia repeatedly used the term “wiretap” in his comments, but indicated later that he was speaking more generally about NSA surveillance, including the collection of phone records.

Like Scalia, Justice Samuel Alito said Congress is better situated than the court to reconcile technology and modern-day expectations of privacy.

“On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions,” Alito wrote, in part, in an opinion about a case involving police attaching a GPS device to a car without a warrant.

Alone among her colleagues, Justice Sonia Sotomayor used the same case to suggest that it might be time for the court to revise its views on privacy, developed in the 1960s and ’70s as they relate to the use of telephones and other devices where people voluntarily hand over information but assume that those transactions are closely held.

“Perhaps, as Justice Alito notes, some people may find the ‘trade-off’ of privacy for convenience ‘worthwhile,’ or come to accept this ‘diminution of privacy’ as ‘inevitable,’ and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every website they had visited in the last week, or month, or year.”