It is not acceptable for people in power, the decision makers, to be oblivious to the ever-changing and evolving aspects of technology. For the second time in so many weeks, I participated in an evidentiary hearing where the judge simply did not understand how Facebook worked. Mind you, not how Elon Musk’s SpaceX rocket uses liquid-fuel rather than solid fuel boosters to achieve lift-off, but Facebook, the common application on almost every smart phone in America.
In that hearing, the court couldn’t have cared any less about its ignorance about the application. Although the hearing worked out in my client’s favor, I was appalled at the court’s arrogance about how much he did not understand. I had no idea that I would have to bring the court up to speed on how Facebook works. Honestly, I don't think I was all that successful in "bringing him up to speed." My client and I were quite white knuckled and in disbelief as we rode the roller coaster of Facebook ignorance. It was surreal. All I can say is that it was a little touch-and-go during the hearing as the court completely butchered how posting and re-posting and tagging works on Facebook. Looking back it was funny, but it was anything but as I was going through it.[i]
Keep in mind, Facebook is not some new or novel application. At this point, Facebook is almost 15 years old and, as of January 2018, had over 2.2 billion users.[ii] A little less than a third of the world uses Facebook. How can this be that grade school children can navigate Facebook but the judge deciding the case does not understand what "like, comment, or share" button are and do?[iii]
It is very dangerous when the judiciary does not understand a basic aspect of our ever-changing society. Facebook, Instagram, Twitter, Google, Snap Chat, Yelp, Amazon, YouTube, I-Tunes, Pandora, Android, iOS …etc. Are so woven into the fabric of our modern society. In fact, there are people every day that make a fortune simply uploading opinion videos of themselves pontificating on everything from why they liked a television show to why they like or don’t like a specific product or application. With all these fast moving, changing parts, it makes no sense that the people entrusted with ensuring that justice is done don’t understand the changing technological topography of our society.
Just last week, the House Judiciary Committee took testimony from Google CEO Sundar Pichai.[iv] Watching the C-Span recording of the hearing on YouTube was appalling. According to the statistics, the average age of a Representative is 57 and the average of a Senator is 61.[v] These people are simply too old to “get it.” With limited exception, I wanted to apologize to CEO Pichai for the ignorant and unintentional harassment from the committee. Seriously, holding up an I-Phone and then being disappointed that someone from Google can’t explain the inter-workings of the I-Phone is absolutely absurd and embarrassing.
It is not just a problem for the judiciary, but also for our government. Congress is struggling with the technology. It has become obvious to anyone under the age of 40, maybe 50, that members of Congress do not fully grasp how Facebook, Twitter, Google, Instagram, Snap Chat …etc. work. These technologies are simply beyond their grasp and understanding. Maybe the members of Congress simply do not have the capacity to understand; maybe they do not have the desire to understand. I do not know, but one thing is for sure that this cannot continue this trajectory.
With an emphasis on cybersecurity, our leaders do not have the luxury of being ignorant of these new and every changing technology. Almost everything involved in an American’s life is touched by technology. From automated power grids to mass transportation to electronic banking and financial markets to our entertainment, Americans are more integrated than ever with technology. We face new challenges and threats every day from these emerging technologies and applications. It is extremely shortsighted when the older folk “put their heads in the sand” and refuse to acknowledge the future and get on board.[vi]
In today's day-and-age, it is unacceptable for members of the judiciary to remain ignorant of these now basic technologies like Facebook. It furthers the stereotype that older Americans, especially judges, are “out of touch” with mainstream America. It makes the judiciary look stubborn, old, and antiquated. It demonstrates a lack of empathy for the people and their methods of communication that come before the court. And it does a complete disservice to those litigants counting on the judge to make a wise and well-reasoned decision.
Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
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[iii] I have no idea if our Founders envisioned a time and place were people would carry a little device that could tell them where they are anywhere on the planet, access their money, talk to people on the other side of the world, video conference with people anywhere as if they were sitting right next to them, and access as much information as their brains could handle. Or a device that could read your heartbeat, blood pressure, and track your movements for a set period of time to tell the user how many calories were burned doing who-know-what exercise. How do you create a judiciary to deal with all of those fact moving and changing parameters? I have no idea, but trials used to be about what information was presented to the jury in the court room by the attorneys under the watchful eye of the judge. But if the judge does not understand the technological environment in which all of the evidence now resides, then how can a party get a fair trial? Now, the various jurisdictions have had to create a length series of rules to prevent the jurors from self-educating themselves about the cases, places involved in the cases, different types of evidences …etc., but are these jurors entirely wrong for wanting the best information they could have to make decisions. I can’t fault them for wanting (but I can for not following the instructions). In any event, I don’t believe that Madison, Hamilton, or Jefferson saw any of this coming. How could they? Nonetheless, we are going to have to deal with these changing parameters.
[iv] https://www.youtube.com/watch?v=zIniYSkAWo0 and https://judiciary.house.gov/wp-content/uploads/2018/11/Pichai-Testimony.pdf (transcript of testimony)
[vi] I am not saying that older Americans have to like the changing technology but tilting at windmills is futile.