Supremely Clueless?

April 20, 2010
The Wall Street Journal's Law Blog ran a story yesterday on the seemingly clueless questions asked by some of our Supreme Court Justices during the oral arguments in City of Ontario v. Quon.  Broadly stated, in Quon the Court is being asked to determine whether there is a constitutional right of privacy that protects text communications when the text messaging is done on devices and service plans provided by an employer.

Quon is Sgt. Jeff Quon of the Ontario County, California Police Department.  Quon "exchanged hundreds of sexually explicit messages with his estranged wife, his girlfriend and a fellow SWAT officer" using department devices.  The police department authorities issued somewhat conflicting pronouncements and procedures on the personal use of department devices.  For more on the case, see Nina Totenberg's "Should Personal Texts From Work Devices Be Private" on the NPR website.

During oral argument, the WSJ Law Blog states:

According to this post, at DC Dicta, the Court asked some questions of the lawyers which, well, the justices’ kids and grandkids could have answered while sleepwalking.

Further along, Justice Scalia's questioning is reported as follows:

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.
“You mean (the text) doesn’t go right to me?” he asked.
Then he asked whether they can be printed out in hard copy.
“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Given the current and future importance of electronic business and personal communication, we should all hope that the Court decides the legal issues correctly.  Regrettably, the Justices may need a crash course in understanding the technology first.  Perhaps their law clerks will be able to help.