Wednesday was a big day for technology cases in the Supreme Court. The Justices ruled on a pair of important cases that promise to have wide-ranging implications for the development and use of modern technology for years and decades to come. But the effects of the decisions aren’t necessarily what either side in the cases has been arguing.
One decision rightly affirmed that police cannot search cellphones without a warrant. The other rejected Aereo's claim that its unique technological model circumvented copyright decisions, without addressing the larger cloud storage issues everyone is worrying about. Let’s look at the cellphone case first.
Cellphone searches: A keen grasp of the obvious
In a triumph of common sense, the Supremes voted 9-0 that Fourth Amendment restrictions on unreasonable search and seizure apply to searching the contents of a mobile phone. This seems blindingly obvious, given the unique ability of a smartphone to reveal so much about its owner. Allowing police to search cellphones willy nilly would have created a huge privacy gap, far bigger than the NSA’s tracking of phone calls and emails.
And yet, given the current climate of fear, paranoia, and ubiquitous surveillance. it was by no means a certainty that the court -- notoriously NOT a tech-savvy bunch, several Justices don’t even use email -- would see the issue clearly. The fact that they all did so is worth noting and celebrating, even if the ruling still includes exemptions that allow for warrantless searches in emergency situations, letting courts determine the legality of the search after the fact.
For once, SCOTUS got it just right:
"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 cell phone seized incident to an arrest is accordingly simple -- get a warrant."
Aereo: Not a rejection of cloud storage… yet
The Aereo streaming-TV-service copyright case was a much tougher nut. The TV networks claimed that a ruling for Aereo would be the end of TV as we know it. But Aereo wailed that a ruling against it would slam the door on all cloud storage providers, who could become responsible for copyrights when users access and share material stored on them.
Here’s the situation. Despite the fact that anyone can receive over-the-air TV broadcasts for free, the "performance right" provision of copyright law requires companies (typically cable and satellite TV providers) to pay the content owners royalties to “perform or transmit” copyrighted material. That’s why you have to pay to get broadcast channels on your cable service, and why TV content is still profitable even as the advertising revenues that once supported the business have slipped.
(Essentially, the TV networks are double dipping, charging advertisers to show their ads to people who have to pay to see them. If this kind of sounds like the arguments over net neutrality, that’s because ISPs also charge users for the ability to receive content that the content providers are paying them to deliver. What a country, right?)
Aereo tried to circumvent that dodgy law with its own sketchy business model, jumping through technological hoops involving droves of tiny individual antennas, virtual DVRs, and Internet streaming--all to get around the letter of the law. It worked in Appeals Court last year, but the Supremes voted 6-3 to disallow the maneuver.
That’s a bummer for wannabe cord cutters who may not be able to get local TV channels so cheap. But the court specifically addressed Aereo’s role as a TV provider, claiming that its ruling would not affect cloud storage or the larger issue of whether it’s OK to stream copyrighted material in other cases.
The minority opinion disagreed: "The Court vows that its ruling will not affect cloud-storage providers … [but] ...cannot deliver on that promise." The Electronic Frontier Foundation added that the ruling "fails to protect Internet streaming."
Well, yeah. The ruling doesn’t explicity address that question. There’s a lot of whining on the Web that streaming copyrighted content is suddenly legally risky. Well, maybe. But not any riskier than it was last week. Justice Breyer, who wrote the majority opinion, clearly said “This does not affect cloud computing.” Sure, cloud storage could still face legal trouble down the road, but the Aereo decision is not going to be the problem.