< Cellphone Searching, Tiny Antennas, and the High Court


Friday, June 27, 2014

BOB GARFIELD:  This week, the Supreme Court ruled on two media technology cases, one that may save the bacon of Big Broadcast and Cable, the other that strikes a blow for digital privacy. In a unanimous decision, the Court ruled that, in most circumstances, police officers will not be able to search an arrested citizen’s cellphone without first obtaining a warrant. Writing on behalf of the Court, Chief Justice John Roberts observed that cellphones are, quote, “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.” On the same day, the Court ruled that startup Aereo, despite an ingenious technological loophole, had violated copyrights by harvesting local broadcast signals and streaming them to subscribers.

Dahlia Lithwick has the court beat at Slate and joins us, once again. Hello, Dahlia.

DAHLIA LITHWICK:  Hi there, Bob.

BOB GARFIELD:  Let’s start with the Aereo case. Now, cable TV uses a big whoppin’ antenna and harvests local broadcast signals and sends them along to its subscribers, but also pays a whopping fee to the stations for that privilege. Aereo was doin’ the same thing, more or less, and paying nobody a dime, correct?

DAHLIA LITHWICK:  That’s exactly right. And, in fact, some of these laws come about because, you know, cable used to steal [LAUGHS] broadcasts. Aereo really argued that, look, what we’re doing is analogous to just renting out those rabbit ears that you can pop on the top of your TV. We’re not broadcasting; we’re not doing anything that violates copyright.

BOB GARFIELD: And the, the reason that Aereo was even able to proffer that argument is because their antenna was not the big gigantic one scoopin’ in everything but many, many, many, many tiny little dime-sized antennas that each subscriber would use individually as he or she was streaming local content. So in a very real way it was one antenna to one user, but ultimately just to get around the copyright laws.

There are future implications from this case. The most immediate is that it probably spells the end for Aereo, unless they can actually sell their technology and their patents to cable companies.

DAHLIA LITHWICK:  That’s right. And when you look at the — how the criticism of this decision breaks down, there’s an awful lot of feeling that this is a horrible, horrible decision, not just in terms of absolutely squelching future innovation and interesting new technology and the possibility of moving into the cloud computing space, but really that oh my God, the broadcast networks are hemorrhaging viewers. Now they have viewers who want [LAUGHS] to pay for their content. There was a way that the networks could have really capitalized on the fact that people are kind of interested in their sports program, they’re kind of interested in some of their shows. Why would you possibly shut down a mechanism to give them those shows?

BOB GARFIELD:  Now, about a year ago we spoke to the founder of Aereo who [LAUGHS], who made his case, I don’t think all that persuasively, but it, it sounded like this.

  [5/17/13 OTM CLIP]:

CHET KANOJIA:  What about a library? A library buys books, without any permission, and is allowed to rent them out to anybody as a public service and build ancillary businesses supplying video services, all kinds of different things.


DAHLIA LITHWICK:  One of the really interesting things in this case is it’s a kind of war of bad analogies. So Justice Breyer is talking about, you know, no, this is exactly like cable. Justice Scalia is talking about how it’s like making photocopies with a library card. Both sides are sort of struggling to ram this into the existing copyright doctrine. The Court is really, really grappling, not just with what Aereo is doing but the implications going forward for cloud computing, for DVRs and for things that they don't even begin to understand. But Justice Breyer hastens to say, this case has no future implications for any of that good stuff, all that good innovation. We don't want to quell any of that. But meanwhile, they’re talking about photocopying library cards and Betamaxes.

BOB GARFIELD:  Now, from the almost ridiculous to the sort of sublime, a rare unanimous decision by a very polarized Court, on the subject of cellphone privacy. Tell me cases that led to this decision, please.

DAHLIA LITHWICK:  This actually comes up as two cases, one that comes up out of California, one that comes up out of Massachusetts. In one case, we’re talking about a case called Riley, the other is a case called Wurie. In both cases, these people are stopped for routine kind of trivial arrests and a search of their cellphones shows that they are involved in much, much worse crimes. The question is, is that kind of search permissible? And 9-0, in an opinion written by the Chief Justice, ab-so-lutely not. This is not like searching your glove box. It’s not like shaking you by the heels and seeing what comes out of your pockets. This is like searching your diary. This is like searching your desk drawers. The Court could not be clearer and I think, in a deep way, understanding of the fact that all the things that the framers sought to protect with the Fourth Amendment — our private papers, our diaries, our deepest, most intimate thoughts — all of that has migrated onto our phones, and allowing the police just search it, search the content of it is absolutely got to be forbidden by the Fourth Amendment, whether or not the framers knew that cellphones were coming.

BOB GARFIELD:  Now, not unpredictably, the cops were kind of bummed. The smartphone was just a fabulous law enforcement tool for them, and they’ve, I guess, lost that, at least absent of warrant, forever.

DAHLIA LITHWICK:  Well, the, the cops have a few escape routes here, and Roberts is clear about this. If there is an exigent circumstance, if there is some clear sign that they are in danger, absent grabbing the phone, they’re always gonna be able to get that. Roberts says, hey, technology works both ways. You can get a warrant in 40 seconds on your iPad.

BOB GARFIELD:  So, on the horizon, a bunch of cases linked to the Snowden revelations about NSA snooping, does this case give us any reason to think that the Court is going to put the reins on security agency overreach?

DAHLIA LITHWICK:  It, it certainly feels to me like some of the language in here is a little bit foreshadowing that the justices have a problem with the collection, not just of your metadata, which is what comes up in some of these NSA cases, but your data altogether. And so, I don't want to read too, too much into these cases. It is clear that the lower courts are just struggling with them now. But I would say that one thing you can tell, if you read Roberts in its entirety, he is saying that the government can make so much trouble for you by aggregating your material and looking at it en masse. This is really so dangerous and so violative of what the framers were terrified of with these general warrants. And so, it does look like, in some sense, that the Court, again, 9-0, is setting a marker that says this information is too precious to be handed away to the government willy-nilly. They can do way too much damage with it.

BOB GARFIELD:  Dahlia, as always, thank you very much.

DAHLIA LITHWICK:  My pleasure.

BOB GARFIELD:  Dahlia Lithwick covers legal affairs for Slate.com. 


Dahlia Lithwick

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