GWEN IFILL: In two closely watched technology cases, the Supreme Court placed limits on law enforcement and on streaming video services. In a unanimous decision, the court decided police officers need a warrant to search cell phones. And, separately, six of the nine justices sided with broadcast networks against an Internet startup that sought to share their signals without paying a fee.
For more on today’s decisions, we turn as always to Marcia Coyle of “The National Law Journal.”
That first case, Marcia, sounds a little bit like, when is a cell phone not a cell phone?
MARCIA COYLE, The National Law Journal: Well, it was a fascinating case, a very straightforward decision by the chief justice.
Actually, it was two cases, Gwen, one from Boston and one from California. The cell phone owners had been lawfully arrested, one for concealed weapons and gang-related activity, the other for drug-related activity. One cell phone owner had a smartphone. The other had the older clip phone.
As you know and as we have talked about, a search is reasonable under the Fourth Amendment, generally, if police have a warrant, but there are exceptions to the warrant requirement that the court has recognized over the years. And that exception — one of the exceptions played out in the case today.
Police can search you after you have been arrested, generally for two reasons, one, to look for any weapons that might endanger the officer or the public, and also to preserve possible destruction of evidence — preserve destruction of evidence — preserve evidence that might be destruction.
Sorry about that.
GWEN IFILL: I got it.
MARCIA COYLE: And the chief justice today for the entire court said that that exception doesn’t apply to cell phones.
GWEN IFILL: Well, here’s a thing that struck me about this decision, the colorful writing, I thought, from Chief Justice Roberts, being very blunt about why he thought this was different, and also the unanimity of the decision.
MARCIA COYLE: That is unusual, especially the unanimity.
The court split on Fourth Amendment and warrant requirements in the GPS case not too long ago.
GWEN IFILL: Right.
MARCIA COYLE: And they sometimes have very unusual coalitions when they divide on Fourth Amendment questions.
But, on this case, it seems like it wasn’t hard for them, generally, because of, as the chief justice explained, the amount of information that cell phones contain today. He went into great lengths describing what we keep on our cell phones today. In fact, he said, a search of a cell phone is a more significant invasion than a search of your home in terms of what you can find.
He made a funny comment at the beginning of his opinion saying that cell phones have become such a pervasive and insistent part of our daily lives that a Martian who came to the United States would probably think that it was an important part of the human anatomy.
GWEN IFILL: This sounds like a man who has teenagers at home.
GWEN IFILL: So, tell me, getting a warrant is all that the required in order for law enforcement to still get access to these phones. And the court said that is the cost of doing business.
MARCIA COYLE: Yes, he said privacy has a cost, and he noted that this will have an impact on law enforcement’s ability to fight crime, but he did think that the government’s counterarguments here just didn’t outweigh those privacy interests.
He says law enforcement has technological tools that it can use, for example, if somebody locks the cell phone. They can put cell phones in these special bags now in order to keep the evidence in the cell phone and cell phone itself from remotely being wiped.
So, you know, he just came down basically saying that the privacy interests here were so much stronger, and he even we want back to the founding of the United States, the American Revolution. He said, the seeds of that revolution were in the colonists’ hatred, antipathy for the general warrants that the British soldiers used in order to rummage through their homes.
GWEN IFILL: Even if they had had cell phones, who knows what the patriots would have thought about this.
MARCIA COYLE: Well, that’s true.
GWEN IFILL: Let’s talk about the second case, which is commonly known as the Aereo case, the video streaming case, also technology, but about copyright law, not about privacy.
MARCIA COYLE: Yes. That’s right.
The major broadcast networks claimed that Aereo, which is a fairly recent streaming venture…
GWEN IFILL: For the record, PBS was one of them.
MARCIA COYLE: Yes, exactly, that Aereo had violated the networks’ exclusive right under the Federal Copyright Act to publicly perform their works. And they — Aereo did this by retransmitting the networks’ program to their subscribers for a fee.
GWEN IFILL: And they did it with little — kind of like an antenna.
MARCIA COYLE: Miniature antennas that they would assign to each subscriber who was requesting a certain program, and then that antenna would go up on a major board, I think in Massachusetts, where they’re based, and the subscriber then would decide, you know, what program and when it wanted to view that program.
For the court, Justice Breyer wrote for a 6-3 majority. And he said, after examining the court’s prior decisions on copyright and technology and also Congress’ response to those decisions in the Copyright Act, that what Aereo does, its operation was very similar to what cable companies do.
And cable companies were regulated under the Copyright Act and were required to pay license fees if they wanted that programming.
GWEN IFILL: So the majority basically thought that Aereo, that the creators of this innovative service were trying to exploit a loophole in law?
MARCIA COYLE: Well, they didn’t say that specifically, but that was the argument of the networks…
GWEN IFILL: Right.
MARCIA COYLE: … that Aereo was trying to game the system by this new method of streaming to their subscribers.
But Justice Breyer, he went step by step to look at whether Aereo actually publicly performs the work. It had a lot to do with the definition of publicly perform. And he rejected all of Aereo’s arguments that, one, it was subscribers who perform and that it was not publicly because the transmission only goes to one subscriber. He still saw it as very much similar to cable companies’ operations.
GWEN IFILL: So, unlike the first case, this was not — the first two cases, this was not a unanimous decision.
MARCIA COYLE: No.
GWEN IFILL: What did the dissenters say, and who were they?
MARCIA COYLE: Justice Scalia wrote the dissent. And he was joined by Justices Thomas and Alito.
And he looked at just one part of the argument here, whether Aereo performed copyrighted work, and decided that they didn’t, and he accused the majority of coming up with a — looks like a cable standard under the Copyright Act that he said would only create confusion.
He did admit, though, at the end of his opinion that he shared the majority’s sense that there was something a little wrong about Aereo’s operation here under the Copyright Act. But he said, if this is a loophole, it’s really for Congress to deal with it, not the courts.
GWEN IFILL: Well, the court has not cut yet at least between us and our telecommunication cord cable providers, right?
MARCIA COYLE: Not yet. Not yet.
GWEN IFILL: Marcia Coyle, “National Law Journal,” thank you.
MARCIA COYLE: My pleasure.