4 ms·

The Supreme Court’s tech illiteracy is becoming a big problem

47 points by fraqed 12y ago

jusben1369 12y ago
A good friend of mine who's a well regarded lawyer stated "the author's grasp of law is actually worse than the SCOTUS lack of understanding of technology" He also mentioned this smacked a little of age bias and navel gazing. When you think if the issues the SCOTUS has to address (medical/financial etc) you realize they're never going to be specialists and never have.
- resu_nimda 12y ago
  Isn't that exactly the knee-jerk defensive reflex one would expect from a well regarded member of the establishment when their peers are under (admittedly overly histrionic) criticism? I'm not defending the author or his position, but I don't find that dismissal very compelling either.
  - maxerickson 12y ago
    The article meanders around and never really ties anything together. It probably doesn't deserve a serious criticism. As a reader one of the first problems I had was that the criticism of Ebay as an invention is reasonable. I also thought it was funny to bring up the ages of the various justices, point out that it didn't reflect their technological savvy and then move on to other things, never to come back again.
    - Rapzid 12y ago
      Yes, that hung me up right away. Plus didn't the courts just rule that taking an abstract idea, like an auction market, and adding "on the computer" (or presumaby "on the internet") doesnt make it patentable?
    - pessimizer 12y ago
      The quote in question: "'I may not be a software developer, but as I read the invention [of eBay], it’s displaying pictures of your wares on a computer network and, you know, picking which ones you want and buying them.' [Chief Justice Roberts] next said about the multibillion-dollar Internet corporation: 'I might have been able to do that.'" That statement is reasonable to this software developer. edit: "In a recent oral argument about a computer-implemented, electronic escrow service, Justice Kennedy asked whether 'a second-year college class in engineering” or 'any computer group of people sitting around a coffee shop in Silicon Valley” could write the code for it 'over a weekend.' The lawyer said yes, to the dismay of many in the industry." I completely lack dismay. Couldn't any computer group of people sitting around a coffee shop in Silicon Valley write an electronic escrow application over the weekend?
      - maxerickson 12y ago
        It's emblematic of the style of the article. Roberts clearly isn't talking about building a huge corporation over a weekend, but that's the comparison that is made.
        TheCoelacanth 12y ago
        Similar to the complaint about Alito's comment about James Madison's views on video games. That clearly was a joke about Scalia's legal philosophy, not an actual misunderstanding about video games.
      - maxerickson 12y ago
        Would you mind clarifying your intent? I can't tell if there is sarcasm there or not. Your edit came after my other reply; I think it actually is the case that a group of computer people sitting in a coffee shop could sketch out an escrow system over the weekend. I guess they wouldn't want to run a business on it, but the shape of it could be there, no problem.
        pessimizer 12y ago
        No sarcasm. I have plenty of objections to Roberts and Kennedy, but these are not them.
- lmg643 12y ago
  I would agree. criticizing the supreme court along these lines feels like like clickbait, and here i am commenting. at the risk of a thousand downvotes, I thought their aereo interpretation was probably on the mark.
  - _delirium 12y ago
    I also don't get the criticism of analogies to older technologies. When faced with applying a statute to new technologies, where the intended application to old technologies is clear but the application to a new one isn't, discussing which older technologies are relevant analogies is a useful way to proceed. In this case it's clear that Congress did not intend the Copyright Act to cover rental of home A/V equipment, but did intend it to cover the 1970s community-antenna systems. So it seems pretty natural to ask: is Aereo's service, in the relevant features, more like CATV or more like equipment rental? The court might've gotten the answer to that wrong, but it seems like the right question to ask. At least, absent Congress actually updating the law to clarify how they want it applied to new technologies. I've read through the opinion and I don't see anything technological to disagree with there. They correctly described how the system operates; the only real disagreement is over whether the Copyright Act was intended to cover a system operating in such a manner. Now at oral argument they sometimes use pretty out-there analogies, but some of that is trying to probe the limits of what an attorney for one side or the other is arguing. By asking "isn't this like X?" they're often trying to get the lawyer to clarify precisely why it isn't.
  - pessimizer 12y ago
    >I thought their aereo interpretation was probably on the mark. I don't think it was, but I certainly don't think it's because they're old and so stupid that they have to understand things by analogy rather than some sort of gnostic osmosis.
rcaught 12y ago
I consider myself technologically literate, yet still everyday I ask questions and attempt to boil down complex ideas into understandable concepts. Sometimes for myself, sometimes for others around me. I would be more concerned if the justices didn't ask the "dumb" questions or if they didn't try to comprehend using analogies, etc.
- omegaham 12y ago
  This is very important. I would be much more scared if the justices weren't asking massive numbers of "silly" questions. It would indicate that they thought they knew everything about the technology, which would be very disturbing. Many of these questions are asked during oral arguments, where a lawyer is describing the technology with other analogies and comparisons to things that have precedent. The justice then ends up saying, "Well, following this line of reasoning, you're basically saying that Ebay's business model is an invention. Is it?" The lawyer then has to respond and clarify what he's saying.
Bulkington 12y ago
While I doubt that many 75-year-olds waste time at work perusing HN, the article misses, downplays or misunderstands several important points: The justices' often use apparently clueless analogies to prompt the attorneys during oral arguments; these are suggestions that the argument needs to be clarified or reframed. Ultimatley, it's the attorneys job to make their cases, no matter how seemingly clueless the court might be. Much/most of the real work at SCOTUS is done by clerks, some of sharpest young minds in the US. I'm betting they will peruse HN for background on issues. It's incredibly easy to cherrypick from the vast library of court opinions for a few rotten tomatoes to throw at a straw man.
- ZanyProgrammer 12y ago
  The sharpest young minds who went to the right law schools.
- thinkcomp 12y ago
  This vastly overstates the wisdom of the justices. They're using clueless analogies most of the time because they're actually clueless, regardless of whether the arguments could be made better. It's true that lawyers should explain their positions clearly in any court, but if the ultimate interpreter of fact can't even understand the facts they're being told, there's a fundamental problem.
- 3rd3 12y ago
  > peruse HN for background on issues. Is HN really such an important source for background on cutting edge tech issues?
  - pessimizer 12y ago
    It's an important source of educated debate about things currently going on in often very specialized tech news, often between domain experts. Isn't that why you're here?
    - 3rd3 12y ago
      I wonder whether HN comes close enough to the effeciency of curated sources, conferences or some private circles to mention it as a proxy for staying on top of current developments, because the gems on HN are usually burried under a lot of comments and submissions without any societal significance. I can’t really form an opinion on that since I have never attended to technology assessment conferences and don’t read tech magazines.
thinkcomp 12y ago
This is what it takes to actually maybe get before the Supreme Court. Hint: they don't yet accept 8.5" x 11" paper from most filers. http://www.aarongreenspan.com/writing/essay.html?id=87 http://www.aarongreenspan.com/writing/essay.html?id=87 Instead, they prefer a paper size based upon the Royal octavo: http://en.wikipedia.org/wiki/Octavo http://en.wikipedia.org/wiki/Octavo
- DanBC 12y ago
  Not "pinched post"? Also, contacting a maker of parchment and vellum might have got results. Here's one: http://www.williamcowley.co.uk/products/sheepskin-parchment/ http://www.williamcowley.co.uk/products/sheepskin-parchment/ Not sure if the recipients of a vellum document would think you're taking the piss or not.
marincounty 12y ago
The author pointed out a few dubious instances of tech illiteracy. The one about Ebay being an Invention. I didn't think Ebay was an invention? I think what the author doesn't take into account is the the Justices have access to consultants, and staffers. The Supreme Court makes decisions in Bioscience; I think they can handle stuff on technology? I wish all writers, speakers, and Bloggers would stop using phrases like "pushback". I always thought Patent Troll was a bad choice of words for describing a complex problem. The Supreme Court will always be very political. The cases are not settled just on the law, or facts. It scares me just how much power they have--especially when it goes against what I think is fair, or right.
- kanzure 12y ago
  > The Supreme Court makes decisions in Bioscience; I think they can handle stuff on technology? Some of their decisions in biology are equally suspicious. For example, should genes, proteins, or DNA be patentable? That one has gone to the Supreme Court on occasion. But patenting human genetics can lead to crazy scenarios like "suddenly the entire human population in the United States is violating Monsanto's patent", which is patently absurd. Of course, I am purposefully exaggerating and twisting some of the arguments, but you can see how the courts can get biology just as wrong as any other technology. On a related and amusing note: In March 2000, President Clinton announced that the genome sequence could not be patented, and should be made freely available to all researchers. The statement sent Celera's stock plummeting and dragged down the biotechnology-heavy Nasdaq. The biotechnology sector lost about $50 billion in market capitalization in two days. see http://en.wikipedia.org/wiki/Human_Genome_Project http://en.wikipedia.org/wiki/Human_Genome_Project
  - marincounty 12y ago
    The court is still very political. I can't even begin to talk about Monsanto--they are horrid. I remember having a botany professor at Sonoma State university who would literally shake when everever he started to talk about how evil Monsanto is--that was years ago. My point is Not that the court has flaws. It does--that's why the appointment of Supreme Court Justices is so dam important. Enen then, I've noticed justices change their views through out the years--so I'm glad they are there for life. Would I like to see Ph.D's in only the hard sciences a basic minimum as a requirement in order to be Supreme Court justices--Yes!
joesmo 12y ago
"The problem is that the justices were groomed in a field that emphasizes reasoning by analogy." That doesn't excuse them form actually understanding the issues and terms at hand. Analogies are good for a lot of things, but they're awful for many others, including most technologies. Instead of using an analogy to understand the cloud, they could use a definition: "other people's servers." It seems to me that this is indeed a failing on the justices' part to put in effort to understand technologies that they rule on time and time again. This is no surprise as they constantly ignore scientific evidence in their rulings. This isn't stupidity, it's and abdication of their duty. Either way, both things lead to horrible rulings like the Aereo one.
hnacct 12y ago
This society is gradually, transparently bending to the will of those in position of high influence. It appears the public does (a) not seem to care or (b) lacks knowledge of the happenings since the government info spill. I wonder how long it'll take to transform into Continuum (series).
deleted 12y ago
[deleted]

47 points by fraqed 12y ago

A good friend of mine who's a well regarded lawyer stated "the author's grasp of law is actually worse than the SCOTUS lack of understanding of technology" He also mentioned this smacked a little of age bias and navel gazing. When you think if the issues the SCOTUS has to address (medical/financial etc) you realize they're never going to be specialists and never have.

resu_nimda 12y ago
Isn't that exactly the knee-jerk defensive reflex one would expect from a well regarded member of the establishment when their peers are under (admittedly overly histrionic) criticism? I'm not defending the author or his position, but I don't find that dismissal very compelling either.
- maxerickson 12y ago
  The article meanders around and never really ties anything together. It probably doesn't deserve a serious criticism. As a reader one of the first problems I had was that the criticism of Ebay as an invention is reasonable. I also thought it was funny to bring up the ages of the various justices, point out that it didn't reflect their technological savvy and then move on to other things, never to come back again.
  - Rapzid 12y ago
    Yes, that hung me up right away. Plus didn't the courts just rule that taking an abstract idea, like an auction market, and adding "on the computer" (or presumaby "on the internet") doesnt make it patentable?
  - pessimizer 12y ago
    The quote in question: "'I may not be a software developer, but as I read the invention [of eBay], it’s displaying pictures of your wares on a computer network and, you know, picking which ones you want and buying them.' [Chief Justice Roberts] next said about the multibillion-dollar Internet corporation: 'I might have been able to do that.'" That statement is reasonable to this software developer. edit: "In a recent oral argument about a computer-implemented, electronic escrow service, Justice Kennedy asked whether 'a second-year college class in engineering” or 'any computer group of people sitting around a coffee shop in Silicon Valley” could write the code for it 'over a weekend.' The lawyer said yes, to the dismay of many in the industry." I completely lack dismay. Couldn't any computer group of people sitting around a coffee shop in Silicon Valley write an electronic escrow application over the weekend?
    - maxerickson 12y ago
      It's emblematic of the style of the article. Roberts clearly isn't talking about building a huge corporation over a weekend, but that's the comparison that is made.
      - TheCoelacanth 12y ago
        Similar to the complaint about Alito's comment about James Madison's views on video games. That clearly was a joke about Scalia's legal philosophy, not an actual misunderstanding about video games.
    - maxerickson 12y ago
      Would you mind clarifying your intent? I can't tell if there is sarcasm there or not. Your edit came after my other reply; I think it actually is the case that a group of computer people sitting in a coffee shop could sketch out an escrow system over the weekend. I guess they wouldn't want to run a business on it, but the shape of it could be there, no problem.
      - pessimizer 12y ago
        No sarcasm. I have plenty of objections to Roberts and Kennedy, but these are not them.
lmg643 12y ago
I would agree. criticizing the supreme court along these lines feels like like clickbait, and here i am commenting. at the risk of a thousand downvotes, I thought their aereo interpretation was probably on the mark.
- _delirium 12y ago
  I also don't get the criticism of analogies to older technologies. When faced with applying a statute to new technologies, where the intended application to old technologies is clear but the application to a new one isn't, discussing which older technologies are relevant analogies is a useful way to proceed. In this case it's clear that Congress did not intend the Copyright Act to cover rental of home A/V equipment, but did intend it to cover the 1970s community-antenna systems. So it seems pretty natural to ask: is Aereo's service, in the relevant features, more like CATV or more like equipment rental? The court might've gotten the answer to that wrong, but it seems like the right question to ask. At least, absent Congress actually updating the law to clarify how they want it applied to new technologies. I've read through the opinion and I don't see anything technological to disagree with there. They correctly described how the system operates; the only real disagreement is over whether the Copyright Act was intended to cover a system operating in such a manner. Now at oral argument they sometimes use pretty out-there analogies, but some of that is trying to probe the limits of what an attorney for one side or the other is arguing. By asking "isn't this like X?" they're often trying to get the lawyer to clarify precisely why it isn't.
- pessimizer 12y ago
  >I thought their aereo interpretation was probably on the mark. I don't think it was, but I certainly don't think it's because they're old and so stupid that they have to understand things by analogy rather than some sort of gnostic osmosis.

rcaught 12y ago

I consider myself technologically literate, yet still everyday I ask questions and attempt to boil down complex ideas into understandable concepts. Sometimes for myself, sometimes for others around me. I would be more concerned if the justices didn't ask the "dumb" questions or if they didn't try to comprehend using analogies, etc.

omegaham 12y ago
This is very important. I would be much more scared if the justices weren't asking massive numbers of "silly" questions. It would indicate that they thought they knew everything about the technology, which would be very disturbing. Many of these questions are asked during oral arguments, where a lawyer is describing the technology with other analogies and comparisons to things that have precedent. The justice then ends up saying, "Well, following this line of reasoning, you're basically saying that Ebay's business model is an invention. Is it?" The lawyer then has to respond and clarify what he's saying.

Bulkington 12y ago

While I doubt that many 75-year-olds waste time at work perusing HN, the article misses, downplays or misunderstands several important points: The justices' often use apparently clueless analogies to prompt the attorneys during oral arguments; these are suggestions that the argument needs to be clarified or reframed. Ultimatley, it's the attorneys job to make their cases, no matter how seemingly clueless the court might be. Much/most of the real work at SCOTUS is done by clerks, some of sharpest young minds in the US. I'm betting they will peruse HN for background on issues. It's incredibly easy to cherrypick from the vast library of court opinions for a few rotten tomatoes to throw at a straw man.

ZanyProgrammer 12y ago
The sharpest young minds who went to the right law schools.
thinkcomp 12y ago
This vastly overstates the wisdom of the justices. They're using clueless analogies most of the time because they're actually clueless, regardless of whether the arguments could be made better. It's true that lawyers should explain their positions clearly in any court, but if the ultimate interpreter of fact can't even understand the facts they're being told, there's a fundamental problem.
3rd3 12y ago
> peruse HN for background on issues. Is HN really such an important source for background on cutting edge tech issues?
- pessimizer 12y ago
  It's an important source of educated debate about things currently going on in often very specialized tech news, often between domain experts. Isn't that why you're here?
  - 3rd3 12y ago
    I wonder whether HN comes close enough to the effeciency of curated sources, conferences or some private circles to mention it as a proxy for staying on top of current developments, because the gems on HN are usually burried under a lot of comments and submissions without any societal significance. I can’t really form an opinion on that since I have never attended to technology assessment conferences and don’t read tech magazines.

thinkcomp 12y ago

This is what it takes to actually maybe get before the Supreme Court. Hint: they don't yet accept 8.5" x 11" paper from most filers. http://www.aarongreenspan.com/writing/essay.html?id=87 http://www.aarongreenspan.com/writing/essay.html?id=87 Instead, they prefer a paper size based upon the Royal octavo: http://en.wikipedia.org/wiki/Octavo http://en.wikipedia.org/wiki/Octavo

DanBC 12y ago
Not "pinched post"? Also, contacting a maker of parchment and vellum might have got results. Here's one: http://www.williamcowley.co.uk/products/sheepskin-parchment/ http://www.williamcowley.co.uk/products/sheepskin-parchment/ Not sure if the recipients of a vellum document would think you're taking the piss or not.

marincounty 12y ago

The author pointed out a few dubious instances of tech illiteracy. The one about Ebay being an Invention. I didn't think Ebay was an invention? I think what the author doesn't take into account is the the Justices have access to consultants, and staffers. The Supreme Court makes decisions in Bioscience; I think they can handle stuff on technology? I wish all writers, speakers, and Bloggers would stop using phrases like "pushback". I always thought Patent Troll was a bad choice of words for describing a complex problem. The Supreme Court will always be very political. The cases are not settled just on the law, or facts. It scares me just how much power they have--especially when it goes against what I think is fair, or right.

kanzure 12y ago
> The Supreme Court makes decisions in Bioscience; I think they can handle stuff on technology? Some of their decisions in biology are equally suspicious. For example, should genes, proteins, or DNA be patentable? That one has gone to the Supreme Court on occasion. But patenting human genetics can lead to crazy scenarios like "suddenly the entire human population in the United States is violating Monsanto's patent", which is patently absurd. Of course, I am purposefully exaggerating and twisting some of the arguments, but you can see how the courts can get biology just as wrong as any other technology. On a related and amusing note: In March 2000, President Clinton announced that the genome sequence could not be patented, and should be made freely available to all researchers. The statement sent Celera's stock plummeting and dragged down the biotechnology-heavy Nasdaq. The biotechnology sector lost about $50 billion in market capitalization in two days. see http://en.wikipedia.org/wiki/Human_Genome_Project http://en.wikipedia.org/wiki/Human_Genome_Project
- marincounty 12y ago
  The court is still very political. I can't even begin to talk about Monsanto--they are horrid. I remember having a botany professor at Sonoma State university who would literally shake when everever he started to talk about how evil Monsanto is--that was years ago. My point is Not that the court has flaws. It does--that's why the appointment of Supreme Court Justices is so dam important. Enen then, I've noticed justices change their views through out the years--so I'm glad they are there for life. Would I like to see Ph.D's in only the hard sciences a basic minimum as a requirement in order to be Supreme Court justices--Yes!

joesmo 12y ago

"The problem is that the justices were groomed in a field that emphasizes reasoning by analogy." That doesn't excuse them form actually understanding the issues and terms at hand. Analogies are good for a lot of things, but they're awful for many others, including most technologies. Instead of using an analogy to understand the cloud, they could use a definition: "other people's servers." It seems to me that this is indeed a failing on the justices' part to put in effort to understand technologies that they rule on time and time again. This is no surprise as they constantly ignore scientific evidence in their rulings. This isn't stupidity, it's and abdication of their duty. Either way, both things lead to horrible rulings like the Aereo one.

hnacct 12y ago

This society is gradually, transparently bending to the will of those in position of high influence. It appears the public does (a) not seem to care or (b) lacks knowledge of the happenings since the government info spill. I wonder how long it'll take to transform into Continuum (series).

deleted 12y ago

[deleted]