Current Events Raise Constitutional Law Issues for the Digital Age

Supreme Court Must Apply Old Law to New Technology as Policymakers Struggle to Keep Pace

On Monday, October 16, the United States Supreme Court agreed to hear a case in which it will be forced to apply a 1986 law to the realities of 21st-century technology, with far-reaching implications for data privacy, international relations, and state sovereignty. The case, U.S. v. Microsoft, asks whether information stored on a server abroad falls within the scope of a search warrant issued in the United States, and it may have profound ramifications for information stored on servers in countries around the globe.

This new case is in addition to one the Court already has agreed to hear in December, which involves whether law enforcement must obtain a search warrant in order to access a suspect’s cell-phone location information. The level of legal privacy ascribed to such data has the potential to impact almost all of us, and yet such key decisions are being made not by our elected representatives after a thorough public debate, but by nine legal scholars appointed for life in a court process which???let’s face it???the vast majority of the American public doesn’t even know is taking place. Unfortunately, it is far from a rare occurrence in the courts of our country at any level to have sitting judges’selected for their legal, not technological, acumen???trying to make sense of complex, new technologies, attempting to figure out largely by analogy how they fit into a legal framework constructed well before those technologies were even imagined.

One of the many negative impacts of our nation’s seemingly unending legislative stalemate has been our ever-increasing reliance on courts???rather than legislatures? to update our nation’s laws. When lawmakers fail to pass new legislation that takes into account the realities imposed by new technology, they leave it in the hands of judges to try to make sense of out-of-date laws. This is not only unfair and overly burdensome on the courts, it is also deprives us of two of the hallmarks of an effective and just legal system: efficiency of process and predictability of outcome.

To learn more about these and other ongoing issues in constitutional law, please join us for ???The Constitution in Crisis?: Issues in Contemporary Constitutional Law”, a JFK University Thursday Soapbox event to be held October 19 from 7 pm ??? 9 pm at JFK University’s Pleasant Hill Campus.