Soapbox

The ‘Twitter test’ for Supreme Court nominees

Protesters hold up signs and their phones during a rally in support of data privacy outside the Apple store in San Francisco on Feb. 23. The FBI is pursuing a court order requiring Apple to help unlock an iPhone used by a gunman in the San Bernardino mass shooting.
Protesters hold up signs and their phones during a rally in support of data privacy outside the Apple store in San Francisco on Feb. 23. The FBI is pursuing a court order requiring Apple to help unlock an iPhone used by a gunman in the San Bernardino mass shooting. Associated Press

Although it may be awhile until we know who will fill the late Justice Antonin Scalia’s seat on the U.S. Supreme Court, we live in an age where information often travels at the speed of a tweet.

The president and U.S. Senate should keep that in mind when selecting Scalia’s successor. Lawmakers often apply litmus tests to judicial nominees, such as their views on abortion.

Now, they need a “Twitter test.”

The court is embarrassingly behind the times on technology, so the vacancy is an opportunity for a much-needed upgrade.

By his own admission, Scalia was “clueless” about smartphones, computers and the Internet. During a congressional hearing a few years ago, he said he didn’t know about Twitter.

It showed whenever the court heard a tech-related case. The social media blog Mashable ranked Scalia last in tech competence among justices following a 2014 hearing on Aereo, a startup that streamed over-the-air local TV to computers.

“The most embarrassing comments of the oral arguments came from Scalia,” Mashable said. “At one point he indicated that he did not know that HBO is a paid premium cable channel, thinking instead that it is available for free over the airwaves.” The remark was not just an irrelevant oops but actually incredibly important, given that Aereo was redistributing HBO’s shows without paying fees.

Scalia wasn’t the only Luddite on the bench. At a hearing on software patents, Justice Anthony Kennedy suggested that code could be written by “any computer group of people sitting around a coffee shop” over a weekend. In a case over whether police should be able to search smartphones without warrants, Chief Justice John Roberts said he doubted that anyone other than drug dealers carries more than one cellphone.

While technological advances have forced workers in many industries to retool or retire, the justices cannot be required to change because they enjoy lifelong appointments. But technology touches virtually every aspect of our lives and often is affected by laws.

With Apple resisting the FBI’s demand to help it hack a terrorist’s iPhone, telecommunication giants challenging the Federal Communications Commission’s new rules on network neutrality and cyberbullying testing the limits of free speech in schools, the court will invariably be called upon to make judgments that relate to technology.

It’s crucial for the nation’s most powerful judges to be familiar with technologies most Americans can’t imagine living without. Otherwise, they might make decisions that misapply the law. Even if law clerks or lawyers clearly explain the relevant technology, justices may not fully understand how people use it.

Fortunately, Scalia “was shockingly forward-looking” in deciding tech-related cases, according to Gizmodo, a tech blog. It pointed to his rulings that video games deserve First Amendment protections and that police use of thermal imaging required a search warrant.

Yet Scalia conceded that justices’ tech ignorance inhibits their decision-making. When confronting tech cases, the court often declines to address the broader issues involved and instead makes a vague, narrow ruling. Such jurisprudence, Scalia wrote in an opinion, is a “disregard of duty” because it leaves lower courts without any guidance on how America’s antiquated laws on issues such as privacy apply to iPhones, GPS and other devices.

In order to modernize the court, future appointees – beginning with Scalia’s successor – should be vetted for their tech literacy. They don’t need a million followers, or even a Twitter account. But they should at least demonstrate a genuine desire to learn about technology and keep up with major developments.

Hopefully, Republicans and Democrats can at least agree on that.

Mark Grabowski is a professor at Adelphi University in Garden City, N.Y., where he teaches Internet law. He can be contacted at mgrabowski@adelphi.edu.

  Comments