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21st Century Technology at the Supreme Court

On Wednesday, the Supreme Court released two rulings displaying varying degrees of confidence in its understanding of modern technology. In one, it held that police searches of cellphones incident to lawful arrest could not be conducted in the absence of a warrant, barring exigent circumstances. In the other, it ruled that Aereo, a streaming service enabling subscribers to view broadcast TV over the Internet, violated copyright laws because it rebroadcast network programming without paying the retransmission fees that cable providers have to pay. The need to apply old legal principles to new situations featuring emerging technology is hardly a new one, but I would argue that the scope and rapidity of modern technological change have heightened the demands placed on the justices. Wednesday’s cases highlight the ways in which the Court conceives of new technology and how its understanding shapes the scope of each ruling.

In Riley v. California, today’s Fourth Amendment ruling (decided together with U.S. v. Wurie), the justices had little difficulty fitting smartphones into Fourth Amendment doctrine governing searches incidental to lawful arrest. That’s not surprising, given the ubiquity of the devices. The least technologically aware justice, in all likelihood, either owns a smartphone or has played around with someone else’s. As such, the justices know the devices’ immense capabilities and recognize the privacy interests at stake when law enforcement officials seek to obtain evidence contained in one’s phone. It takes little imagination to conceive of smartphones as containing both “papers” and “effects” that the text of the Fourth Amendment protects against unwarranted search and seizure; as a result, a pro-privacy ruling could be supported by committed originalists as well as those favoring a more dynamic interpretative approach.

In contrast, the Aereo case (American Broadcasting Cos. v. Aereo) presented a greater challenge for the Court. Given the demographics of those likeliest to “cut the cord” and eschew cable in favor of newer, nimbler methods of obtaining programming, my hunch is that the justices are unlikely to adopt cutting-edge technology like Aereo. To their credit, they strove mightily during oral argument to get a firmer handle on what exactly Aereo did and the extent to which it was acting like a cable company, only with a magic loophole enabling it to avoid retransmission fees. (The entire business model is built around the existence of this loophole.) The justices did share a distaste for Aereo’s business model; where they differed was on whether they could close the loophole themselves (the majority position) or had to leave to Congress the job of fixing the statute that left open the loophole (the dissent). At the same time, however, there was widespread concern that a ruling against Aereo could jeopardize popular cloud storage services, such as Dropbox and Google Drive, that could also be used to stream copyrighted material. The majority addressed this scenario by taking great pains to state that the ruling against Aereo applies to Aereo only, and that judgments about the legality of other services would not be addressed in advance of legal challenges. Whether the Court can effectively limit the scope of the Aereo ruling in this manner remains an open question, but the desire to set such a limit reflects concern about the unintended consequences of ruling on less familiar technology in a way that might hinder future innovation.



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