The myth of the old fogeys: Why the Supreme Court is tech-savvier than people think

SCOTUS gets a bad rap where technology is concerned, but recent decisions show that's not quite true

Topics: Supreme Court, SCOTUS, technology law, aereo, Editor's Picks, ,

It’s become fashionable, of late, to bemoan the supposed technological incompetence at the country’s highest court. “Black-robed techno-fogeys,” laments one article; “everyone … inside that courtroom is most likely an incompetent Luddite,” proclaims another; and a third purports to rank the justices by technological incompetence. The court certainly doesn’t do itself any favors, with a website reminiscent of the late 1990s, a well-known aversion to email communication, and more than one embarrassing gaffe during oral arguments.

But all those things are tangential, of course. At the end of the day, what matters is the quality of the legal reasoning in the court’s opinions and whether it accurately reflects technological reality — not whether Sonia Sotomayor knows that “Netflix” is plural or that “iCloud” doesn’t take an article. And in the waning days of the court’s most recent term, three cases came out that amply demonstrate that when it comes to applying the law to emerging technology, the court knows exactly what it’s doing.

Take Riley v. California, a Fourth Amendment case about whether, if you’re arrested, police can rifle through your cellphone without a warrant. Since 1973, the settled rule had been that if you’re arrested, everything on your person is fair game. After all, the court had reasoned, you could have a weapon on you. As against the prerogative of officer safety, the court decided that the invasion of privacy was relatively minimal. And rather than require police to make on-the-spot determinations of what might or might not contain a weapon, the court issued a bright-line rule that anything on a suspect’s person could be searched incident to arrest — even a cigarette case.

So the stage was set for the government to argue, in Riley, that cellphones were “materially indistinguishable” from any physical object — say, a diary, or photos in a wallet — that might be found on an arrestee’s person. But the court saw things differently: “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” While the occasional suspect in 1973 might be arrested carrying a diary, everyone carries a cellphone today. And cellphones are diaries, and photo albums, and all our letters, and much more besides. On top of that, cellphones can access information in the cloud — not on the arrestee’s person at all. For all these reasons, the court held, the old rule did not extend to cellphones.

After the oral argument in Riley, predictions were dire. But, as professor Orin Kerr has noted, in both this case and United States v. Jones, a 2012 case about GPS tracking, the government failed to procure a single vote at the court. Although the court can be reluctant to render a decision on the merits in tech privacy cases, when it does, it understands perfectly how applying an old rule to new technology can upset the established equilibrium.

The other two tech cases this term were both in the area of innovation policy — copyright and patent law, where the court has often been prescient about technology. Alice Corp. v. CLS Bank concerned software patents, a tough nut to crack. Many software companies and computer scientists believe software should be simply unpatentable, and the evidence shows that the recent burgeoning of patent trolls is largely the result of software patents. At the same time, there are thousands of software patents out there, and legitimate businesses also rely on the protection that they confer. More fundamentally, it’s not immediately clear why software inventions should ipso facto not be patentable just like any other invention. The real question is what, exactly, makes a piece of software an invention — a difficult question, because of the inherently abstract nature of software.

In Alice Corp., the court began to give us an answer. The patents at issue all concerned the idea of hedging against counter-party risk — basically, the risk that the other guy will back out of a business deal. To mitigate the risk, both sides complete the transaction through a neutral third party. Justice Kennedy was mocked for asking at oral argument whether the concept was simple enough to be hacked up by a competent programmer in a weekend — but he was basically correct to ask. Like many early software patents, the only “innovation” was the idea of using a computer  — in this case, as the neutral third party. Taking an old idea and implementing it on a computer, the court held, doesn’t count as an invention. Although some have decried the court’s incremental approach to software patents, the ruling was carefully targeted to knock out a large proportion of troll patents while leaving alive the possibility of true innovations that merit protection.

Finally, in ABC v. Aereo, the justices confronted a conundrum. On the one hand, Aereo was quite clearly exploiting a loophole in the law: It took broadcast TV signals from the airwaves and sent them to users — but avoided paying the license fees traditional cable companies pay by having a separate tiny antenna for each user. On the other hand, the way ABC was urging the court to close the loophole — by reinterpreting key settled terms in the Copyright Act, like “perform” and “transmit” — could have had unintended consequences for many other cloud services.

Of the three cases, the court was clearly the least comfortable with Aereo and its potential for screwing up both settled understandings and emerging technologies. And yes, perhaps the justices were a little in the dark about the technology, too. But professor David Post, who co-authored an important amicus brief in support of Aereo, points out that the opinion only concerns itself with the retransmission of broadcast television signals and has nothing to say about services that “deal with the vast array of non-broadcast-TV content.” In other words, Justice Breyer, laudably self-aware of the court’s institutional shortcomings, wrote a painstakingly narrow opinion to close the loophole while leaving key areas of innovation unaffected.

* * *

A few commentators in this latest round of court bashing have argued that the real problem in tech cases is with the court’s use of analogy and metaphor. Selina MacLaren writes that “emerging technology is, by definition, about breaking away from history.” Analogizing new technology to past cases, the thinking goes, is a crutch for long-in-the-tooth justices who can’t reason about the technology directly.

This line of argument is deeply misguided. Reasoning by analogy is part of what makes legal reasoning distinctly legal, and the very concept of legality entails continuity with the past. Rules validly made in the past must be followed in the future until those rules are validly changed. And how a rule applies to a given set of facts in the present — including emerging technology — is determined, at least in part, by examining how it applied to a similar set of facts in the past. Without reference to established principles, prescribing rules of conduct is simply legislation. The upshot is that as long as we want our judges to be judges, rather than legislators, reasoning by analogy isn’t going anywhere.

That’s not to say that there’s nothing to see here. Many commentators have recognized that the artful use of metaphor can make or break many tech cases. Indeed, in Aereo, the deciding factor was whether Aereo’s service seemed more like a cable system, providing retransmitted broadcast TV, or more like an equipment provider, providing a tiny antenna on a rooftop down the street. And the government’s theory in Riley depended on the analogy from cellphones to diaries, purses and wallets.

In both cases, the court recognized the utility and the limits of analogy and metaphor. The analogy in Aereo was useful because it helped the court understand Congress’ intent in writing the statute and reason about whether it ought to extend to Aereo’s service. By contrast, in Riley, the analogy no longer fit the reasoning — the privacy violation in searching a cellphone was entirely unlike anything the court had encountered in previous cases. So the court returned to first principles and reasoned its way to a new rule.

Misapplying analogy and metaphor can substitute fact-finding for legal reasoning, but the answer is hardly to eschew them entirely. And the justices may not be techno-wizards at oral argument or chronicle their daily minutiae in tweets and snapchats — but that’s not what matters. (We may even be better off for it.) What matters, at the end of the day, is the quality of the opinions they write and their legal reasoning — whether by analogy or from first principles, whether in tech cases or any other. We could do far worse than the likes of Riley, Alice Corp., and Aereo.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows


Loading Comments...