The Difference Between the Pager and the E-mail

Reading about the Supreme Court oral arguments in City of Ontario v. Quon makes me sad and angry in equal measure. Here are some of the questions the Justices asked about a case that involves the privacy of messages sent to an employer-provided pager:

CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the 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 are 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?

JUSTICE SCALIA: Can you print these things out? Could Quon print these — these spicy conversations out and circulate them among his buddies?

This is a case whose resolution depends critically on the details of the technology at issue. It’s clear that multiple Justices of the Supreme Court walked into oral argument deeply unclear on how a pager works. I don’t expect judges to be avid Twitter users with a Metafilter login and a tumblog, but this is a case in which their job requires that they learn enough about the technology to pass intelligently on it. Justices Roberts and Scalia failed to prepare adequately for the oral argument. Their law clerks failed to brief them sufficiently. And even a lawyer in the case couldn’t respond to a relevant question:

JUSTICE ALITO: Are you sure that — are you sure about your answer to the question of deletion? It’s not like deleting something from a computer which doesn’t really delete it from the computer?

MR. DAMMEIER: Honestly, I’m not — that’s not in the record, and the — how that pager works as far as deleting, I couldn’t be certain that it would be deleted forever.

I am not optimistic about the opinion in this case, whichever way the decision it comes out.