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When the justices ruled unanimously this year that human genes cannot be patented, the depth of knowledge required about genetics prompted Justice Antonin Scalia to disassociate himself from parts of the opinion "going into fine details of molecular biology."
"I am unable to affirm those details on my own knowledge or even my own belief," Scalia said.
Computer technology poses other problems for the court. "E-mail is already old-fashioned," Justice Elena Kagan quipped last month, "and the court hasn't gotten to that yet."
Time doesn't stop for the courts to catch up with modern medicine or technological innovation.
"At every turn, as the digital age hare leaps forward, the constitutional jurisprudence lags, like a tortoise, far behind," says Charles MacLean, an assistant professor at Indiana Tech Law School who has written on the issue. "Constitutional jurisprudence, unlike Aesop's tortoise, never quite seems to catch up."
MacLean has concluded that legislatures, not courts, should address issues of rapidly changing technology -- or else, "the risk is that we defer our privacy limits to programmers and marketers."
When it comes to criminal law involving search and seizure, the court since 2001 has been asked to rule on cases involving thermal imaging, global positional systems (GPS) and deoxyribonucleic acid (DNA):
--In Kyllo v. United States, the court ruled 5-4 that police needed a search warrant to use a thermal imaging device that detected heat used to grow marijuana inside a home.
--In U.S. v. Jones, the court ruled unanimously that police could not attach a GPS device to a car without a warrant in order to monitor its movements. Perhaps the die was cast during oral arguments when Roberts confirmed that otherwise, even the justices' cars could be followed.
--In Maryland v. King, the court ruled 5-4 last year that police can swab the cheek of someone arrested for a serious offense to obtain DNA -- which then can be matched against databases of unsolved crimes.
Scalia, who wrote the Kylloand Jones decisions and often sides with defendants in Fourth Amendment cases, wrote a scathing dissent in King. He warned that in the future, "your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."
Some experts warn that if cellphones go the way of cheek swabs, the arrests that follow could lead to embarrassment at least, as well as legal complications, for otherwise law-abiding citizens. (continued...)
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