Constitution Check: Is the Supreme Court balancing individual rights and new technology in a way that makes sense?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy,  looks at how Wednesday’s decisions in the Aereo and cellphone search cases show how the Supreme Court is balancing the Constitution in the Digital Age.

THE STATEMENTS AT ISSUE:

The Supreme Court

The Supreme Court

“We agree that Congress…did not intend to discourage or to control the emergence or use of different kinds of technologies.   But we do not believe that our limited holding today will have that effect…We cannot now answer more precisely how the provisions of the Copyright Act will apply to technologies not before us…Questions involving cloud computing, remote storage DVRs, and other novel issues not before the Court…should await a case in which they are squarely presented.”

– Justice Stephen G. Breyer, writing for a 6-3 Supreme Court majority in curbing a new tech company’s approach to streaming copyrighted TV programs to that company’s own paying customers, without paying any royalties to the copyright owners. The decision came Wednesday in the case of American Broadcasting Companies v. Aereo, Inc.

“Modern cell phones…are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy….Today, it is no exaggeration to say that many of the more than 90 percent of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate…Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two.”

– Chief Justice John G. Roberts, Jr., writing for a unanimous Court in requiring police to obtain a search warrant before they may examine the digital contents of a cell phone they take from a person they have arrested on suspicion of crime. The ruling came Wednesday in the case of Riley v. California.

WE CHECKED THE CONSTITUTION, AND…

Whatever method one uses to interpret the Constitution, it requires a good deal of imagination to suggest that it fits perfectly with conditions that the Founders could never have imagined.     The state of technology in the Twenty-First Century might well be a surprise to a visitor from Mars, but it certainly would have astonished the Founding generation. It is the Supreme Court’s task these days to try to balance the somewhat antique values of the Constitution with the technological marvels of the Digital Age.

There is, obviously, a constitutional tension between the notion that inventions can be locked up in the exclusive possession of a single discoverer – something guaranteed by the Copyright Clause that has been in the Constitution from the very beginning – and the idea that some technology should not be in the hands of a monopolist but should be open to experimentation and alteration by people clever enough to find new ways to make it work.

And there is, similarly, a constitutional tension between the concept that the police should be free to search for evidence of crime whenever they use “reasonable” methods – something that is assured to them by the Fourth Amendment, in the Constitution since 1791 – and the modern reality that people carry around in their pockets the secrets of virtually their whole lives, and want to keep those beyond police prying.

The Supreme Court confronted those two forms of tension this week as it continued its pursuit of ways to apply old legal values to contemporary society.

In one case, some techies – in a way typical of many start-ups these days — had dreamed up something new in communication technology: they worked out a way to pass TV programs on to audiences for a low monthly fee, but that ran squarely up against the ownership of the copyright on many of those programs by the TV broadcast industry.   The Supreme Court resolved that tension this week by ruling for the broadcasters: snatching copyrighted TV programs off of the airwaves and transmitting them to paying customers without paying royalties to the broadcasters, it ruled, is a form of direct copyright infringement. But it went to extra lengths to say how narrow its ruling was, in the face of dire predictions that it was going to use copyright law to shut down innovation.

Still, a broader question lingers in the wake of that ruling: does ruling for broadcasters, who have been slow to modify their business model to adapt to changing consumer tastes and habits, a good way to promote “the progress of science and useful arts” — in the words of the Copyright Clause in Article I – in the entertainment world?

In the other case this week, the Supreme Court once more faced the reality – as it did in an important privacy case two years ago – that advances in technology are giving the police new ways to go after crime, in ways that can probe deeply into personal matters.   Two years ago, it was GPS technology, which police were using to secretly track all of the movements of a criminal suspect’s car – innocent as well as incriminating. The court ruled then for privacy, generally requiring police to get a court order to install that kind of device on a private vehicle.

This time, the court for the first time grappled seriously with just what cell phone technology means to a modern American’s life.   Police, of course, are eager to check out what is on a suspect’s cell phone, because that often provides leads to criminal investigators. But there is much on the average person’s cell phone that has nothing whatever to do with police investigations – for example, matters of deep personal intimacy, revealing tastes, habits, vulnerabilities, values.

In that case, the court ruled very broadly. It simply withdrew cell phones from police inspection, unless the officers first went to a judge and obtained a search warrant – taking the privacy equation out of the hands of the police and putting it in neutral hands. This was an even greater expansion of electronic privacy than the ruling in the GPS case.

One of the lingering questions in the wake of that case is just how police will react to this new limitation on law enforcement techniques.   Will they take the privacy declarations of the ruling seriously, or will they spend their energies trying to find work-arounds to the warrant requirement?

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