Rachel Maddow Takes A Cheap Shot @ SCOTUS

Court watchers, political pundits and privacy advocates alike had an eye on the Supreme Court this week as the justices heard oral arguments in City of Ontario v. Quon. The question before the Court was whether a police officer had a reasonable expectation of privacy for text messages sent and received on a government issued pager. The officer filed suit after the City audited his text messages. While the city did not have an explicit policy in regard to the usage of and access by the city to messages sent from pagers, it did have a general "Computer Usage, Internet and E-mail Policy" reserving to the city the right to access emails stored on city servers.

The argument raised significant questions as to whether or not the city's email policy put the officer on notice that his pager messages were also subject to review. A key factor in answering this issue is the exact nature of email vs. pager messages, triggering some technical questions from the justices. Here's how Rachel Maddow covered these questions:

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Pretty harsh treatment of Justice Roberts and others, painting them as out of touch and not at all tech savvy. The oral argument transcript, however, reveals a different story:

JUSTICE GINSBURG: But my question is, an employee reads this policy and says, oh, my e-mails are going to be subject to being monitored --

MR. DAMMEIER: Sure.

JUSTICE GINSBURG: Wouldn't that employee expect that the policy would carry over to pagers? When you think of what's the reason why they want to look at the e-mails, wouldn't the same reason apply?

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

MR. DAMMEIER: Sure. The e-mail, looking at the computer policy, that goes through the city's computer, it goes through the city's server, it goes through all the equipment that -- that has -- that the city can easily monitor. Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off-duty.

CHIEF JUSTICE ROBERTS: You can do that with emails.

MR. DAMMEIER: Certainly, certainly. But . . . in this instance it went through no city equipment, it went through Arch Wireless and then was transmitted to [another person].

Instead of ignorant questions from a technology illiterate CJ, the exchange above cuts to the very core of the case. The Ontario email policy was based in part on the use of city-owned computers and network resources, allowing the department to audit emails stored on city-owned servers. Justice Roberts' question was searching out a legally significant difference between the expectations of privacy with the email situation described above and that of messages sent on a pager - which used no resources, other than the actual pager device itself, besides the Arch Wireless network.

I understand that it is easy - with a little editing - to score some points by painting the Court as out of touch. Attacks like this give credence to the opponents to allowing TV cameras into Supreme Court oral arguments. A ten-second sound bite can't always convey the nuanced back and forth of a legal argumentation at the highest level. Cameras could open up the doors for millions of Americans to experience one of the most important institutions in our country. Unfortunately, it would also open the Supreme Court to attack from those who would forget the whole of the argument and merely twist snippets to fit their agenda.