What do the following two questions have in common?
Does the Fourth Amendment permit police officers to perform a warrantless search of an individual's cell phone confiscated at the time of an arrest?
Does a company "publicly perform" a television program when it retransmits broadcasts of that program to thousands of paid subscribers over the Internet?
This is not a law school exam. Please forge ahead.
The Supreme Court docket obsessed among you will know that these were the questions presented in two cases argued before the Supreme Court in the last two weeks: Riley v. California and American Broadcasting Co. v. Aereo, Inc.
And in both, the geeklicious world of information technology poked its fresh face into the marble and gilt chambers of the Supreme Court.
In these cases, the Court's decisions may significantly alter the way we capture, store, and consume information (Aereo) and the extent to which we can expect privacy with regard to, or control, that information (Riley).
Both are central to our civil society. And oral arguments found the Justices stumbling about, grappling with what happens when the information society butts heads with the law. The questioning did not inspire confidence in the Court's tech savvy. You definitely should not call them to fix your WiFi, but are they tech literate enough to get these cases right?
Consider these gems from the petitioners' days in Court:
In Riley, we got the suggestion that warrants might be issued on an app-by-app basis. Plus maybe the first time the phrase "online dating app" has been uttered in the chamber.
Chief Justice Roberts: [A smartphone has] got the person's whole life....I don't know what a magistrate is supposed to put in the warrant.
Mr. Fisher (counsel for Riley): I would say his banking app, his online dating app—
Chief Justice Roberts: You don't think his banking app—his banking app is going to say on this day he deposited $10,000 into his account, and then that's going to coincide with a particular drug deal.
Mr. Fisher: Well, Mr. Chief Justice, those arguments can be made on an app-by-app basis.
In Aereo, we got iCloud, Dropbox, coaxial cable, and phonographs (remember those?) all thrown into a confusing brew:
Justice Sotomayor: Is your definition—I mean, Justice Breyer has already asked you—said he's troubled about the phonograph store, and—and the Dropbox and the iCloud. I'm also worried about how to define or—public performance or the performance of a work publicly, which I guess is the better way to do it, according to you. How do I define that so that someone who sells coaxial cable to a resident of a building is not swept up as a participant in this? Or someone who—the sort of passive storage advisors that—this is really hard for me.
There's been great sport in recent days tweaking the Justices for their lack of tech proficiency—or defending them. After all, the Chief Justice, the second youngest member of the Court, still writes his opinions in long hand. But he also seems to know what a Fitbit is!
Justice Scalia is positively baffled by some Internet behavior: "I don't know why anyone would like to be 'friended' on the network. I mean, what kind of a narcissistic society is it that people want to put out there, This is my life, and this is what I did yesterday? I mean...good grief. Doesn't that strike you as strange? I think it's strange."
During Aereo, Justice Sotomayor wondered about the "iDrop in the cloud" while the Chief Justice referred to the Aereo's customer antennas as "my little dime thing." Meanwhile, knowing their audience, the lawyers tried to help the Justices by providing tortured analogies to valet parking and coat checks.
In Riley, Justice Alito and later Justice Sotomayor spent some time talking about the difference in the amount of information stored in a "billfold" versus a smartphone. And then Justice Kennedy went on a quest for precedent regarding briefcases full of documents...or diaries. He and counsel managed to find a 1916 Learned Hand case and a few Henry Friendly cases.
To quote Justice Scalia: good grief. These guys (and gals) can't seem to perceive the world we live in without resorting to early 20th Century analogies. (We might be able to exempt Justice Kagan and the Chief Justice from this overgeneralization).
I'm not as negative about the Justices as all of the preceding suggests.
In the Aereo oral argument, the Court displayed a deep and persistent concern about the implications of their forthcoming ruling on cloud services. Even if they did not understand exactly how the "iDrop in the cloud" works from a technical standpoint, they understood that lots of people use it and that it's important.
In Riley, despite the horse-and-buggy era analogies, the Court members quite clearly comprehend that a person's entire life can be on a smartphone—so much so that perhaps they see that there's a difference in kind, not degree, between a smartphone and a billfold.
Will these hints of tech awakening on the Court mean smooth sailing for the information society? Or will the Court revert to a Model T worldview? More likely is a classic Supreme Court move—two narrow, highly fact-specific rulings that provide little broad guidance.
In the meantime, if you're looking for someone to reset your password, please do not call the Supreme Court. But they might be able to help you with your online dating profile.
Note: The Brennan Center filed an amicus brief in Riley. The brief argued that a warrant requirement is necessary to ensure appropriate judicial oversight over all searches of cellphones, which can contain vast quantities of sensitive information about a person's life.