The Supreme Court made two significant rulings today, both of which may shape parts of the digital frontier.
Riley v. California
The court made a unanimous decision for Riley v. California (as well as the similar case United States v. Wurie), which called into question whether law enforcement can legally search cellphones without a warrant. The justices stood by the Fourth Amendment and poured some cold water on the cops. Chief Justice John Roberts explained:
With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. …
Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant.
What kind of impact might this decision have? Steven R. Shapiro, the national legal director of the American Civil Liberties Union issued a statement saying, "By recognizing that the digital revolution has transformed our expectations of privacy, today's decision is itself revolutionary and will help to protect the privacy rights of all Americans. We have entered a new world but, as the court today recognized, our old values still apply and limit the government's ability to rummage through the intimate details of our private lives."
The New York Times among other publications and advocacy groups have argued that such defense of privacy is "crucial" for "journalists, members of the press, and citizen reporters"
Orinn Kerr of The Washington Post speculates that this is "a big win for digital privacy" and "Riley may just be the tip of the iceberg. Computers have now generated a very different rule for searches incident to arrest: The police have to follow one rule for physical evidence and a different rule for digital evidence."
This is a decision that is likely to be lauded across the political spectrum. A Rasmussen poll last month found that only 24 percent of "American adults believe that if police arrest someone for any offense, they should be allowed to search that individual's mobile phone without a warrant."
Click here for more Reason coverage on the case from Damon Root.
American Broadcasting Companies, Inc. v. Aereo, Inc.
Gizmodo explains in unbiased terms what Aereo does. "It's essentially a digital TV antenna and cloud DVR, except one that doesn't require you to set up any goofy hardware in your living room. Instead, Aereo assigns you your own tiny antenna on one of its tiny-antenna farms, and streams what comes in over the cloud through your Roku, Apple TV, Chromecast, or browser."
At The Washington Post, David Post summarizes the two sides of the debate:
1. Aereo is the functional equivalent of a cable company. Cable companies are required (oddly enough, by the Copyright Act, instead of where it really belongs, the Communications Act) to pay retransmission fees to the network broadcasters when they re-transmit the signals transmitted over-the-air by the broadcasters to cable company subscribers, because the Copyright Act deems them (the cable companies) to be "transmitting performances of copyrighted works to the public." That's exactly what Aereo is doing: re-transmitting over-the-air broadcast signals to its subscribers. It, too, should be deemed to be "transmitting performances of copyrighted works to the public." QED.
2. No, Aereo's not the functional equivalent of a cable system, it's the functional equivalent of a rooftop TV antenna connected to a DVR in the living room. It simply gives consumers a tool that enables them to do what they are already permitted to do: pull down over-the-air signals, record those signals, and then transmit those signals at a later time to some device (TV, laptop, phone). If it's not infringing for customers to do that for themselves (and it isn't), why should it be infringing when Aereo does it for them, in a more efficient manner? Aereo's equipment (like the rooftop antenna) transmits performances – those performances are not transmitted "to the public"; each transmission is a private performance to the individual subscriber whose antenna/DVR, controlled by that subscriber, was called into play.
The majority opinion, penned by Justice Stephen Breyer, is that Aereo's "behind-the-scenes technological differences do not distinguish Aereo's system from cable systems, which do perform publicly." The dissent came from three conservative justices, with Justice Antonin Scalia writing, "So which is Aereo: the copy shop or the video-on-demand service? In truth, it is neither. Rather, it is akin to a copy shop that provides patrons with a library card."
Reason TV spoke with Aereo CEO Chet Kanojia earlier this month. He said, "Whatever happens to Aereo the industry from now on is going to be forced to move forward and innovate. … [We] didn't cause this change. The change has been brewing since the Internet started moving bits around."
Indeed, Aereo's technology and others like it will continue to grow, because consumers demand more flexible, less expensive alternatives to standard television, the death of which has been predicted for years.
Click here for more Reason coverage on the case by Jesse Walker.