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How the U.S. Supreme Court approaches questions involving privacy and technology

Neal Katyal, Fmr. Acting Solicitor General of the United States in conversation with Jeffrey Rosen of the National Constitution Center. Created by Aspen Institute.

Video transcript

i'm jeffrey rosen the president of the National Constitution Center and i'm sitting here with neil cat yowl former acting Solicitor General of the United States we're here to talk about the Supreme Court privacy & Technology Neil the justices are from an older generation how does the court work and broadly how do they approach questions involving privacy & Technology well I think they approach questions about privacy & Technology the same way as they approach any questions which is to say they're not experts in any particular field they're not you know when the railroad era was prevalent and there were a lot of cases at the Supreme Court they obviously weren't experts in rail when it was financed and the bank of the United States and stuff they weren't experts in finance so what they do is they rely on excellent advocacy on both sides of a question they get very frustrated if one side or the other is weak and hasn't actually made the best arguments they also have available to them their law clerks 36 of them each justice has four and they tend to be a little more current and up-to-date with events I remember when I was clerking for Justice Breyer in 1997 we had the first internet case about the Communications Decency Act and indeed it was interesting my laptop was the only one and the clerks or the chambers that actually had a connection to the Internet I brought it in separately it was air-gapped so there wasn't any relationship with the court computers and lots of people from the court came over to figure out how does internet work what is it and the justices themselves I know this has been publicly reported had a tutorial about the internet surrounding the case and so there is a kind of learning component with technology as there is with many different areas at the Supreme Court wasn't it reported that the justices had to be tutored about how to access racy pictures on the internet they didn't know how to do it I don't know anything about that I have to say but certainly today the court is quite technologically adept many of them have iPads and read their briefs that way they're all comfortable with email and with you know word processors and things like that so the court has moved into a new era but that isn't to say that they're familiar with each nook and cranny of the latest technology be it in the biological space and life sciences or be it in the realms of digital privacy and the like the really complicated questions surrounding encryption or something like that how technologically up-to-date so they have to be I think justice Elena Kagan joked at one oral argument that the most up-to-date video games she remembered playing was pong as a kid yeah I mean this has been a debate particularly recently in the area okay switch ask the question of whether this new startup company could yank signals over the air from free over the broadcast TV and take them and sell them for a profit individuals who wanted to watch TV on their palm devices around their laptops or whatever and the Supreme Court I think reached the right decision there didn't require a lot of technological expertise though there was a lot of criticism around the oral argument about different words they'd use maybe they used the wrong you know up-to-date technological word or something but at the end of the day they got that right they by and large do get it right I think this is a chord that's pretty good at saying what they know what they don't know and they try and figure out what they don't know and sometimes in technology cases because they don't know a lot they do have a little more of a go at slow approach we saw this year in the software patents case in which there were big major arguments should software be patentable the Supreme Court said you know they kind of wrote a more minimalist decision leaving that for further debate and discussion