President Obama Should Nominate a Supreme Court Justice for the Next Generation

The person selected to fill the vacancy left by Justice Scalia’s death should not only share Justice Scalia’s intelligence and love for country, but should also have a fundamental understanding of how Americans interact with science and technology.

The next justice does not need to be a trained computer scientist in order to help guide the Court’s thinking. But the Court needs to have at least one member who is generally familiar with information technology, has thought deeply about its sweeping implications, and understands how large segments of our society engage with it.

Technology is becoming embedded in every part of our lives. We shop, pay bills, make political donations, and file taxes online. We use our phones to talk, text, email, instant message, snapchat, and tweet, and we rely on GPS to maneuver our car from point A to point B. In the process, we leave data trails everywhere.

It will fall to the courts to set limits as to how the collected data is used. Can a health wearable device transmit your number of steps and heart rate to your doctor’s office? To your life insurance provider? People frequently post anonymous opinions online; can the visited sites be compelled to identify the speaker?

Airplanes and cars no longer require human operators. Who will be held liable for an accident, the owner of the vehicle, the seller of the vehicle, or the programmer who wrote the underlying algorithms? Distant friends and acquaintances connect in online networks. Can those associations be used by banks in making financial decisions about your credit worthiness? Your refrigerator will remind you when you are running low on milk. Will it also tell your health insurance company that you’ve gone through more bottles of wine than usual? Will it know whether you threw a party or went on a bender? If so, what will it do with that information?

We monitor our pets, children, and homes remotely; can authorities tap into those same secure webcams without a warrant? Commuters pay their bridge and toll fees with an automated device; can the police use the same data about their driving distance and times to slap them with a speeding ticket? People pay to view pornography online; can financial service providers refuse to process payments for protected speech they find distasteful?

Bluntly put, we are entering uncharted waters when it comes to traditional interpretations of the First and Fourth Amendments. Many of us intuitively understand that our steadily growing mountains of online data are best viewed as an extension of our offline persona. It will be up to the Court to determine how much privacy we are entitled to retain in our own involuntarily generated data. The Fourth Amendment doctrine, holding that people have no right of privacy in data they have willingly shared with a third party, no longer makes sense; anyone not living off the grid in a barter economy has no choice but to share vast amounts of personal data with third party processors. We need a Court that will block the inappropriate use of that data. Similarly, the days of truly anonymous speech and freedom of association are quickly fading, but the Court must step in with appropriate safeguards of these dearly-held rights.

In looking at the current make-up of the Supreme Court, it contains no digital natives and that is evident in many ways. Justices do not use email at work to communicate with each other. Instead, they write a memo, on ivory paper, which is hand-delivered to the intended recipient. In a recent case, Chief Justice Roberts queried whether one might reasonably suspect a person carrying two phones of dealing drugs, a standard that would put most government officials under suspicion. In a case arguing that cell phones should not be subject to a warrantless search after arrest, Justice Alito asked whether that same standard should apply to a compact disk, something that very few people carry with them to store data. Justice Sotomayor has asked questions about “Netflick” from the bench.

There will be wide disagreement about the attitudes, values, and beliefs that the next justice should hold. But there is no real disagreement that they will serve in an era shaped in very large measure by the Digital Revolution. The Digital Revolution is a “real” revolution, akin to the Agricultural Revolution and the Industrial Revolution in the scope of its impact on our civilization.

The next justice should have the expertise and experience to understand what’s going on.