How the New Supreme Court May Tackle Tech’s Big Questions

As our Supreme Court weighed the First Amendment implications of brutal video games back in 2011, Justice Samuel Alito cut in with a sarcastic jab: “Well, I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

This wasn’t the first time that scientific advances had divided these super-conservative justices—and that speaks to a crucial point. While the confirmation hearings for Judge Neil Gorsuch will involve familiar debates over how to read the Constitution, judicial orientations toward new technology can scramble the fields in surprising ways.

Law isn’t immune to technology’s disruptive capacity. What matters most in 10, 20, or 50 years won’t be confined to musings on originalism. Instead, it’ll hinge on a mix of questions inflected by unimaginable scientific discoveries and technical innovations.

In thinking about the Court, it’s therefore vital to consider judicial perspectives on emerging technology.

Take video games. When the Court weighed a law restricting the sale or rental of violent video games to minors without parental approval, deep splits emerged. While Alito and the late Justice Antonin Scalia traded barbs over Madison’s views on Grand Theft Auto, other Justices peppered advocates with questions about Mortal Kombat and slaughtering Vulcans. The Court was of many minds regarding games that generate an immersive experience of savage violence.

Ultimately, the Court fractured in bizarre ways: Scalia, the originalist-in-chief, was joined by four avowed living constitutionalists (Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) to strike down California’s law. In unsparing terms, his opinion dismissed the idea that violent video games are any different from comic books, which once were thought to corrupt the youth.

Scalia’s usual allies, Alito and Chief Justice John Roberts, wrote separately to reject Scalia’s assertion that nothing had changed. Soon enough, they warned, we’ll see “games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.” And that difference might be decisive in the constitutional reckoning.

Meanwhile, the fifth horseman in the conservative column, Justice Clarence Thomas, ignored technology. Instead, he set off into the 18th century colonial wilderness, emerging with an assertion that the First Amendment “does not include a right to speak to minors … without going through the minors’ parents or guardians.” Justice Stephen Breyer, too, would have upheld the law, but for diametrically opposed reasons: dozens of cutting-edge social science papers showing a compelling correlation between virtual and actual violent behavior.

Intuitions about new technology thus reshuffled the deck in ways that “originalism” and other theories can’t explain.

So too in 2013, when the Court weighed a Maryland law requiring officers to obtain DNA from many arrestees. This was the first time the Court dealt with DNA databases. As Alito remarked, it was “perhaps the most important criminal procedure case that [the] Court has heard in decades.”

The Court split 5-4, again along irregular lines. This time, though, Alito, Roberts, and Breyer—all of whom had agonized over new technology in the video game case—joined a majority by Kennedy that displayed no anxiety about DNA databases. Kennedy had once warned against “elaborating too fully on the [constitutional] implications of emerging technology before its role in society has become clear.” But here his lack of “elaboration” on the potential threat to liberty was treated by many as a statement in its own right.

Now it was Scalia who seemed most attuned to the perils of modernity. Joined in dissent by Ginsburg, Sotomayor, and Kagan, he marked his “doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths to royal inspection.”

But new technology is not always divisive. Sometimes it unexpectedly unifies the Justices, when they discern that innovation has given new form to ancient evils.

This occurred in 2014, when the Court considered whether, while searching a person “incident to arrest,” the police may examine digital information on cell phones without a warrant. Faced with this loaded question, the Court unanimously held that a warrant is required.

The Chief’s opinion, rife with citations to iPhone User Guides and WebMD, recognized that cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” The Chief drew a direct line from the 1790s to the present: just as the Framers reviled “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search,” so must we protect cell phones, which “hold for many Americans the privacies of life.”

These issues are just the tip of the iceberg. In the years ahead, courts may struggle with many other such questions that scatter the usual axes of judicial disagreement—like limits on using 3D printers to manufacture guns, police requests for data from smart-home devices, forcing cell phone owners to reveal passcodes, and more. Indeed, several cases now before the Court may have huge effects on tech.

Judges typically are not scientists by training, nor are they expert in the scientific method. But they have tremendous power to shape scientific development, and to be shaped by it in turn. Sometimes they affect technological advancement directly—in patent law, copyright cases, and review of federal regulations. Sometimes they affect it indirectly—by loosening rules on money in politics in ways that impact Silicon Valley, by examining immigration policies that govern access to scientific talent, and by protecting civil rights that are preconditions for a free society. And sometimes technology shapes them in the subtlest ways—such as when they casually invoke Facebook and iPhones.

In all of these circumstances, high-profile disputes over originalism, textualism, and “pro-business” or “anti-defendant” judging are only part of the story. An important part, to be sure, but not always decisive.

Although often overlooked, judicial attitudes toward and awareness of evolving technology can shape society in far-reaching ways. In assessing justices, it is therefore important to ask: What is this person’s orientation toward technological innovation, and is he or she sensitive to the Court’s evolving role in that process?

Judge Gorsuch, for instance, is a devoted originalist. The most famous originalist, Scalia, was almost always wary of claims that technology requires new rules. At times, he seemed to proudly flaunt his lack of scientific understanding. As a result, in too many cases, Scalia relied on old, ill-fitted legal categories and some very clumsy analogies.

This led Alito, in a case about GPS tracking of a car, to wonder if Scalia was basing his analysis on a hypothetical constable hiding himself in a stage coach for months and months. Alito added, “The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”

Yet nothing about originalism necessarily requires this mindset. An originalist more open to technology could seek to engage at a deeper level with questions about how original public meaning intersects with scientific capabilities unknown to 18th century Americans. At the very least, a committed originalist could still develop a refined grasp on new science, to make sure his centuries-spanning logic rests on good facts.

On this score, while we have grave disagreements with many of Judge Gorsuch’s views, his track record in the Tenth Circuit is at least partly encouraging. When faced with questions about faulty police databases and efforts to interdict child pornography in cyberspace, he has displayed a sensitivity to the underlying technology that suggests he may be more interested in these matters than Scalia.

We cannot know what the future holds. But we can at least seek to understand how our highest court will face the challenges ahead.

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source : https://www.wired.com/2017/02/new-supreme-court-may-tackle-techs-big-questions/

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