Do Judges Understand Technology? Does it Matter?

By: Thomas Friedkin

Most of us know that you have to be careful with your actions on the internet these days. A seemingly innocuous action on a social media site can have far reaching effects one might not have originally anticipated. Take the holding in a decision from a district court judge in Virginia this April for example. A few Sheriff’s department employees were let go after the Sherriff was reelected. [1] These employees claimed they were let go because of their support of their boss’ rival during the election. [2] Aside from some inadequate testimonial or speculative evidence that their boss was aware of their involvement with his rival’s campaign the only other evidence was that these employees had liked the rival’s fan page on Facebook. [3] The Judge, while acknowledging that making certain comments on a Facebook page can be protected speech, held that simply liking a fan page is not enough to be considered speech. [4] I won’t go into a discussion of the prudence or merits of such a holding, those issues have been considered and given better coverage than I could provide by other blogs. [5] [6] What is striking about this ruling is how much one’s constitutional protections in the face of developing technology can depend on how up to date a particular judge is on new technological developments and trends.

More recently this concept was dealt with by a judge in a New York Criminal Court. This case involved an attempt to subpoena the tweets of a person who took place in the occupy Wall Street protests. [7] The judge held that a person’s tweets are the same as yelling out one’s windows. [8] Interestingly enough he also stated that the many of the founding fathers would have been avid Twitter users if it had been available in their day. [9] In May of this year Twitter added a portion to their terms of service stating that users retained their rights over any content they created. [10] They attempted to argue that this change could protect their users from a subpoena. [11] However, the judge held that only data which had been stored longer than the 180 day statutory period under the Stored Communication Act would require a warrant; all other data could not be protected as one did not have a reasonable expectation to privacy in their tweets. [12] In reaching this opinion the judge even referenced a blog post which, partially in response to Judge Jackson’s ruling in the previously mentioned case, claimed that judges do not understand social media. [13] While in this case the judge’s holding led to a less startling decision and one perhaps not as likely to be appealed, he revealed his understanding of at least one element of modern technology. That is, no one actually reads the terms of service before signing up for anything.

Regardless of whether a judge understands modern technology they will be the ones most immediately responsible for dictating its confluence with the law. If you look at the age of certain judges this may be a harrowing realization for some. [14] Even Justice Alito has said that Congress may be a bit hipper when it comes to understanding and deciding how the current trends in technology should interact with the law; [15] an assertion that I am not sure gives much solace to the youth. However, we can be sure that technology just like the law will keep changing and the advancement of both will have far reaching and profound effects in the workplace, our homes and our lives. For now just be careful what Facebook pages you like and remember no one actually expects you to read the terms of service.



[1]
. Bland v. Roberts, No. 4:11cv45, 2012 WL 1428198, at 1 (E.D.Va. April 24, 2012).
[2]Id
[3]Id. at 3.
[4]. Id. at 4.
[5]. Megan Garber, Is a Facebook Like Protected Under the First Amendment? A Court Says No, The Atlantic (Apr. 30, 2012, 3:05 PM), http://www.theatlantic.com/technology/archive/2012/04/is-a-facebook-like-protected-under-the-first-amendment-a-court-says-no/256534/.
[6]. Venkat Balasubramani, Facebook “likes” aren’t speech protected by the First Amendment, rules judge, Arstechnica (Apr. 28, 2012, 3:40 PM), http://arstechnica.com/tech-policy/2012/04/facebook-likes-arent-speech-protected-by-the-first-amendment-rules-judge/.
[7]. People v. Harris, 2012 WL 2533640 (N.Y. City Crim. Ct. June 30, 2012).
[8]. Id. at 4.
[9]. Id. at 6.
[10]. Twitter, https://twitter.com/tos (last visited Sept. 2, 2012).
[11]. People v. Harris, 2012 WL 2533640 at 2 (N.Y. City Crim. Ct. June 30, 2012).
[12]. Id. at 5.
[13]. Stephanie Rabiner, Esq., Do Judges Really Understand Social Media?, Technologist (May 9, 2012, 4:59 AM), http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html.
[14]. A.G. Sulzberger, Wesley E. Brown, Oldest Judge in Nation’s History, Dies at 104, N.Y. Times (Jan. 25, 2012), http://www.nytimes.com/2012/01/26/us/wesley-e-brown-oldest-judge-in-nations-history-dies-at-104.html.
[15]. United States v. Jones, No. 10-1259, slip op. at 33 (U.S. Jan. 23, 2012).
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