Like the legal profession generally, the United States Supreme Court has a reputation as slow to embrace new technologies. For example, Justice Kagan shared in an interview last year that the Justices rarely use email. Yet at the end of the recent term, the Court decided cases affecting two evolving technologies: cell phones and streaming video services. Unanimous in the judgment in Riley v. California, the Court held that the search incident to arrest doctrine does not allow police officers to search through the contents of an arrestee’s cell phone without obtaining a warrant. In American Broadcasting Companies v. Aereo, the Court concluded that a provider of video streaming services engages in a public performance and infringes copyrights by using dedicated antennae to capture broadcast signals and then transmit them to subscribers over the internet. However, in the opinions in these cases, the Justices seem careful to avoid allowing any personal unfamiliarity with cell phones or with Aereo’s streaming service to affect the quality of their decisions. Instead, the Justices confront the technologies in a pragmatic manner, focusing on the functions easily accessible to average users and avoiding analysis of underlying technological details.
Writing for the Court in Aereo, Justice Breyer explicitly uses this functional approach. In reply to Aereo’s argument that the Copyright Act did not prohibit Aereo activities because each individual subscriber receives a signal from a dedicated antenna, Justice Breyer asks, “[W]hy [from Congress’s perspective] should any of these technological differences matter?” The Court goes on to observe that the Copyright Act must apply to Aereo’s activities because—for a customer viewing video content—there is no difference between Aereo and the cable providers that Congress already regulates.
Similarly, Chief Justice Roberts’s opinion for the Court in Riley uses vivid imagery to explain why the variety of functions available on a modern smart phone justify the Court’s decision to emphasize the importance of the warrant requirement in the context of cell phone searches. The Court highlights the vast quantity of personal information available on and through smart phones, observing that “[m]ost people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so.”
However, Riley and Aereo diverge with regard to scope. At the end of Riley, the Court plainly states its broad conclusion: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” On the other hand, responding in Aereo to arguments that a ruling against Aereo would have a chilling effect on development in the emerging cloud computing sector, the Court carefully proclaims the limited nature of its holding, stating that its decision “does not extend to those who act as owners or possessors of the relevant product” and that the Court has not yet decided “whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.”
Nevertheless, Justice Scalia, dissenting in Aereo, critiques the Court’s approach to limiting the opinion’s scope, arguing that the Court’s functional analysis fails as a legal standard. Describing “cable-TV-resemblance” as the only test employed by the Court, Justice Scalia characterizes such a test as vague, expressing concern that the Court’s opinion leaves existing and future service providers with no guidance regarding permissible conduct.
Relative familiarity with the technologies at issue may explain the difference between the broad ruling regarding cell phones and the narrow ruling regarding Aereo’s cloud-based streaming service. As the Court noted in Riley, a person who does not carry a cell phone is more the “exception” than the rule these days. Over the past decade, consumers, police officers, and the Justices have all had the opportunity to observe the role that cell phones play in contemporary society. In contrast, online streaming video services have become popular only recently, and consumers are just beginning to embrace cloud computing and remote storage systems. Indeed, while the Court in Riley carefully balances the popular and legal consequences of a broad ban on warrantless searches of arrestees’ cell phones, the Court does not seem prepared to do so in Aereo. Rather, by highlighting the issues that the Aereo opinion does not address, the Court calls attention to areas of the law that need additional development to respond to technological change.
While the Court’s Riley decision seems likely to provide lasting guidance for police officers even as “the gulf between physical practicability and digital capacity . . . continue[s] to widen in the future,” the parties in Aereo have already continued to pursue the kind of litigation that will ultimately precipitate additional case and statutory law governing technologies like cloud computing and video streaming services. In a blog post on July 9, Aereo’s CEO shared a letter filed with the Southern District of New York discussing the status of the litigation on remand from the Supreme Court. According to the letter, Aereo’s new legal strategy essentially embraces the Supreme Court’s functional approach. Aereo claims that the Court’s decision to characterize the company as similar to a cable provider means that Aereo now qualifies for a statutory license and for immunity from injunctions against its transmissions. Although this argument may stretch the bounds of the Court’s decision and Aereo may not succeed on the merits of its new claim, similar innovative legal arguments will force courts to engage with emerging technologies at the points where they intersect with the law, ensuring that the law will continue to evolve alongside modern technology.
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