Author: Brian Pascal, Research Fellow, Privacy and Technology Project
It turns out that searching through the digital contents of a person’s mobile phone is more intrusive than rifling through an address book, wallet, or purse. Correspondingly, police may no longer perform such a search without a warrant. Privacy advocates are hailing the Supreme Court’s decision last Wednesday in Riley v. California as a victory of common sense and rationality over blind adherence to doctrine. But just a few minutes before the Riley decision appeared online, the Court handed down its ruling in ABC v. Aereo, holding that the company’s use of tens of thousands of dime-sized micro-antennas to stream broadcast television over the internet was a form of copyright infringement. The Court’s decision in Aereo has so far seen a far cooler reception than its one in Riley, with some fearing that the majority’s reasoning could potentially chill innovation.
Let’s be honest: Riley and Aereo barely have anything to do with each other. One is a Fourth Amendment case, the other is about copyright infringement. And while there is some crossover in the tech policy world, there aren’t many public defenders who run a side business litigating civil intellectual property disputes, nor are there many IP attorneys who spend their days off arguing the exclusionary rule. The only reason these two cases have so often been cited in parallel is that they were handed down within minutes of each other, and they both relate to technology. That said, what these two cases do illustrate is just how much trouble the Supreme Court, and, by extension the entire legal system, has with new technologies. And what we need to ask is why, doctrinal technicalities aside, so many see Riley as coming out the “right” way while Aereo is viewed as a “bad” result.
The simplest explanation is that it comes down to familiarity. The vast majority of Americans possess mobile phones, they are staples of popular culture, and both Justice Roberts, in this case, and Justice Sotomayor, in her concurrence in U.S. v. Jones, have expressed at least some capacity to understand aspects of the technology (though likely not as much as some have said). And while the Supreme Court is a notoriously luddite institution, it is also reasonable to assume that the clerks, typically just a few years out of law school, are no less comfortable with mobile phones than anyone else in their late 20s or early 30s. And despite the thousands and thousands of pages of court documents, depositions, discovery, and amicus briefs, the result is obviously correct to anyone who has seen an iPhone commercial.
By contrast, Aereo is a mess. The technology is a hack designed specifically to exploit a loophole in copyright law. The underlying law is barely functional in the context of the internet, requiring endless backflips to make words like “copying” and “performance” make sense. One writer dismissed the justices’ treatment of Aereo’s technology as something no more knowable than “magic,” and, as another lamented, “There’s no logic to opinions like these, nothing but gut feelings and hand-waving—nothing but the inexplicable distaste for dime-sized antennae.” With this much uncertainty, it’s possible to make the precedent say anything, and then it’s just which side can afford more lawyers.
The real problem goes deeper than the justices’ familiarity (or lack thereof) with a particular technology. What we really need is a more rigorous way for the law to think about technology. We need to be able to draw cleaner lines between what was and what is and recognize the limits of precedent to describe the world around us.
The Arthur C. Clarke Rule
Arthur C. Clarke famously wrote, “Any sufficiently advanced technology is indistinguishable from magic.” The definition of “advanced” in this rule is subjective: many things that seem perfectly ordinary to a 21st century American would appear miraculous to a person in 1980. Similarly, many technological advances of the 20th century (e.g., antibiotics, or atomic bombs) would be completely incomprehensible to an individual living in, say, Philadelphia in the late 1780s. No matter how smart an individual is, no matter how far ahead of his or her time, their thinking is still constrained by the world around them. Isaac Newton was probably one of the three or four most brilliant scientists who ever lived, but we know today that his physical theories only approximate a real world that is more accurately described by general relativity and quantum mechanics. These more modern theories rely on experimental and theoretical understanding that simply didn’t exist in the time of Newton, so it is hardly fair to blame him for the incompleteness of his laws of motion.
Call it the Arthur C. Clarke Rule. If the law seeks to regulate a given technology, we should consider whether that technology was even comprehensible at the time of the law’s inception, or in light of subsequent legal precedent. For example, the advent of electric cars should not require us to completely rewrite the rules of the road from scratch—they work more or less like ordinary cars, just with a different energy source. But when it comes to autonomous cars, driven by algorithmic decisions made by distant computers, we might need to rethink the way we craft our automotive regulations. The technical reality of modern autonomous vehicles was beyond science fiction when we first started writing down highway regulations. Sure, we might have imagined cars that drove themselves, but the how of it wasn’t something that even the most visionary of inventors could have imagined.
Which brings us back to Riley and Aereo. Here’s the best line in the Riley opinion:
The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items… . That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.
When courts were laying down the majority of Fourth Amendment jurisprudence, the idea of mobile phones as they are now used in modern society wasn’t even science fiction. We may have imagined communicating wirelessly over long distances, or storing vast amounts of information in our pockets, but no one could have predicted just how quickly the mobile phone would become one of the defining technologies of the 21st century. The same goes for copyright. Even 20 years ago, the economic and practical realities of the modern internet were largely inconceivable.
This is the real lesson we should take away from Riley and Aereo. Technology is changing fast these days, arguably faster than it ever has before in human history. The law is expanding as well. Courts are seeing more and more cases, spread across increasingly esoteric factual bases. This means that the number of technology-influenced cases before the courts is going to keep increasing, and it’s only going to get more complicated from here. Maybe it’s time to stop treating this symptom-by-symptom, moving from one bad decision to the next and complaining about the legal system’s constant inability to deal with technology. It’s time to start creating a more rigorous framework to help them make better decisions in the future.