Kokomo Tribune; Kokomo, Indiana

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January 8, 2014

Technology? Some justices want to keep distance

(Continued)

They may have been playing for laughs, but the justices left the impression that day that they did not fully grasp what a pager is and how the process works, said Orin Kerr, a George Washington University law professor and expert on privacy and technology.

"It was embarrassing," said Kerr, who has urged courts to go slow and defer to elected officials in applying constitutional protections to privacy issues raised by new technologies.

Like Scalia, Justice Samuel Alito said he thinks Congress is better situated than the court to reconcile technology and modern-day expectations of privacy.

"New technology may provide increased convenience or security at the expense of privacy, and many people may find the trade-off worthwhile," Alito wrote in a 2012 opinion joined by three other justices. "And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable," he said in the case involving a GPS device that police attached to a car without a warrant.

He added: "On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions."

Alone among her colleagues, Justice Sonia Sotomayor used the same case to suggest that it might be time for the court to revise its views on privacy, developed in the 1960s and '70s as they relate to the use of telephones and other devices where people voluntarily hand over information, but assume that those transactions are closely held.

"Perhaps, as Justice Alito notes, some people may find the 'trade-off' of privacy for convenience 'worthwhile,' or come to accept this 'diminution of privacy' as 'inevitable,' and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every website they had visited in the last week, or month, or year."

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