Center Faculty Director Gary Marchant was invited to give a 90-minute presentation to the annual conference of the Council of Chief Judges of State Courts of Appeal in Lexington, Kentucky on October 19.
Marchant’s presentation on Disruptive Technologies and the Challenges of Being a Judge in a Rapidly Changing World focused on how judges must take a dynamic rather than static perspective in addressing the many emerging technologies now making an appearance in courtrooms. Judges increasingly face issues involving genetics, nanotechnology, high-tech surveillance, virtual reality, and artificial intelligence.
Marchant used Justice Kennedy’s 2010 opinion in City of Ontario v. Quon as an exemplar. In that case, which dealt with the digital privacy of a city employee, Justice Kennedy wrote that courts “must proceed with care” when addressing rapidly developing technologies.
[The] judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear…. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees…. A broad holding concerning employees’ privacy expectations vis–à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.
Marchant argued that judges need to apply this type of reflexive approach to rapidly changing technology and the unprecedented challenge facing the judiciary and all legal practitioners.