How the Supreme Court Misunderestimates The Power of Technology in Doe v. Reed


Having described the ticking time bomb in the Supreme Court’s decision last week in Doe v. Reed, which concerns disclosure of signatories on a ballot initiative, this blogpost takes a closer look at two misapprehensions the justices have about technology’s effects on disclosure laws.

Online Disclosure Transforms Government Functions

Firstly, the justices overlook how making information available online in machine-readable formats has a transformative effect on government. In our era of perpetual budget crises, states do not have the resources to invest in 100% reliable signature verification measures, or in many other worthy efforts. Even in a perfect world, this likely wouldn’t be a priority. Justice Alito, who believes that states can “easily and cheaply employ alternative mechanisms for protecting against fraud and mistake,” conflates the technologically possible for the financially feasible.

But members of the public have demonstrated their willingness to build tools that provide these kinds of services without burdening the public purse. Contests like Apps for America, websites like Open Congress and Open Secrets, and communities of public-interested technologists like the 2000-member list assembled by Sunlight Labs all demonstrate the power of this new era of collaborative government. Online machine-readable government information improves oversight capability in a geometric, not linear, fashion. But it can only work with public access to raw data.

Misunderstanding Technology Leads to Confused Decisions

Secondly, the Court’s possible misunderstanding of the way the State of Washington discloses information to the public may have lead to faulty reasoning. In Justice Roberts’ opinion for the Court, he recounts that two Washington state-based organizations had publicly declared their intention to post the names of petition signers “online, in a searchable format.” Justice Alito’s concurring opinion adds that Washington’s Secretary of State takes the petitions and has them “digitized.”

The apparent implication for Justice Alito is that this would allow for electronic comparison of the names on that list to those held by the Secretary of State. He may be conflating “digitized” with meaning “online, in a searchable format” – or more precisely — in a machine-readable format. The oral argument transcript is ambiguous on this point. I cannot tell if the files are “digitized” by being scanned in as pictures, or PDFs, neither of which allow for easy automatic comparison.

If I am right about the conflation error, Justice Alito is mistaken in his assessment of how feasible it would be for the Washington Secretary of State to run a signature verification program. This increased difficulty may change his analysis.

As an aside, it is ironic that the amicus and merits briefs filed in this case, whose subject is online disclosure of government information, are unavailable on the Supreme Courts website and must be obtained through third parties like ScotusWiki. Maybe they should update their website to look like this.

For questions surrounding technology matters, the Court may wish to consider bringing in outside experts, rather than relying on amici and the parties alone.