June 2014

The Supreme Court Saves Cellphone Privacy

[Commentary] The nine justices of the Supreme Court -- whose average age is 68 -- often admit to being unfamiliar with modern technology, if not befuddled by it. While listening to oral arguments in April, Chief Justice John Roberts Jr. asked, with apparent sincerity, why anyone other than a criminal would carry two cellphones. Yet in a gratifyingly sweeping ruling, the court embraced a central reality of the digital age and protected such phones from being searched without a warrant during an arrest, except in rare circumstances. The ruling reaffirmed the essence of the Fourth Amendment’s ban on unreasonable searches and seizures -- “one of the driving forces behind the Revolution itself,” as the court said -- even though the Bill of Rights was written by men who could not have imagined an iPhone in their maddest dreams.

Why the high court protects cellphone privacy

[Commentary] In its ruling on cellphone privacy, the Supreme Court points out that such digital devices are now a pervasive part of daily life, extending our identities into new realms. Ensuring privacy is a way to protect new notions of identity. It is up to citizens to press lawmakers on how to resolve the issues posed by new technologies. Each person’s “new” identity in the digital universe depends on it.

The Supreme Court Justices Have Cellphones, Too

[Commentary] The Roberts court has too often been on the wrong side of history, most pointedly in its retrograde refusal to protect the right to vote; June 25 was the first anniversary of Shelby County v. Holder, the shameful 5-to-4 decision that undermined the Voting Rights Act. When it comes to technology, however, the court seems free of ideological baggage and is trying hard, collectively, to get it right.

I had planned to conclude my discussion of the court and the search cases with a mention of “empathy,” the ability to put oneself in someone else’s shoes, so often missing from the Supreme Court’s criminal law decisions but perhaps on display here. But on reflection, it’s not really empathy. The justices are walking in their own shoes. The ringing cellphone could be theirs -- or ours.

Cellphone Ruling Could Alter Police Methods, Experts Say

The Supreme Court decision making it harder for the police to search cellphones without a warrant could change procedures around the country, police officials and legal experts said.

In an opinion hailed as a major advance for personal privacy in the digital age, Chief Justice John G. Roberts Jr. wrote that cellphones are tiny computers that can be said to contain “the privacies of life.” And so the opinion concluded that the message for police in most cases is simple: “get a warrant.” That requirement, however, could hinder law enforcement, said Yousry Zakhary, president of the International Association of Chiefs of Police. “I wish it was just as simple as ‘get a warrant’ ” to comply with the law, he said. “It takes time -- and key evidence could be lost.” His organization filed an amicus brief with the Supreme Court, asking that the authority to search cellphones after an arrest be preserved. He said the decision was disappointing.

Supreme Court cellphone ruling hints at broader curbs on surveillance

The words “National Security Agency” appear nowhere in the Supreme Court’s opinion prohibiting cellphone searches without a warrant. But the unanimous ruling makes clear that the nation’s most important jurists are tuned in to the roiling debate about high-tech surveillance and concerned about government officials going too far.

In broad, passionate language -- spiked with the occasional joke -- the ruling by Chief Justice John G. Roberts Jr. asserts that the vast troves of information police can find in modern cellphones are no less worthy of constitutional protection than the private papers that Founding Fathers once kept locked in wooden file cabinets inside their homes. Such declarations, experts said, suggest a willingness to reconsider legal rulings long used to justify modern surveillance tools. That includes some spying technologies that were unimaginable when courts first articulated those arguments but that now are routinely used by a range of government agencies, including the NSA, the FBI and many state and local police forces. A footnote in the ruling cautions against assuming too much about the court’s views on data collection “under other circumstances.” But legal experts on both sides of the privacy debate took notice of the unanimity of the ruling and the uncommonly strong language Chief Justice Roberts used when describing the privacy risks in modern technologies.

Aereo's Loss Shifts Goal Posts for Networks

[Commentary] The digital upstart enemy has been vanquished and TV content remains secure upon its throne. Broadcast content, that is.

The US Supreme Court said Aereo was effectively no different from a cable company and thus must pay broadcasters for the right to distribute their signals. For broadcasters, the ruling removes what might have become a major threat to margins. With the ad market still relatively weak, the rapidly growing, high-margin business of charging retransmission fees to pay-TV providers is essential to keep pace with mounting programming costs, particularly for sports. For pay-TV providers, which will be shelling out an estimated $5.95 billion in retransmission fees by 2017 -- up 70% from 2013 -- according to Janney, something may have to give. Given the growing number of online alternatives, they can't very well pass all of that on to subscribers. And barring any further threat from an online rival, companies that own broadcast networks or other networks that hold sports rights will likely be seen as indispensable. Against this backdrop, cable networks that lack major sports content such as Viacom, AMC Networks, Discovery Communications and Scripps Networks Interactive look vulnerable. These companies could have less leverage to negotiate affiliate fees as distributors try to protect their margins, particularly as pay-TV companies consolidate. As broadcasters celebrate Aereo's loss, stand-alone cable networks may have lost an unlikely ally.

Did the justices really understand Aereo?

[Commentary] In siding with broadcasters against Aereo, the Supreme Court resorted to a simple principle: If it looks like a duck and walks like a duck, the law should treat it as a duck, no matter what kind of creature it is. But in doing so, the court threw a legal shadow over a slew of other tech-driven companies.

Writing for the court's majority, Justice Stephen G. Breyer pooh-poohed the technological distinctions between Aereo and cable TV. But as dissenting Justice Antonin Scalia observed, the majority glossed over a crucial detail: Aereo may be providing the equipment, but its customers are the ones transmitting the programs. By shifting responsibility for those transmissions to Aereo because it "looks like cable," Justice Scalia wrote, the court threw into doubt a long-settled principle that technology providers don't violate copyrights just by enabling others to do so. There's been plenty of speculation that Aereo could undermine broadcasters by cutting into or even eliminating the substantial fees they collect from cable operators. But then, as Justice Scalia noted, broadcasters said the VCR would be the death of their industry too. By trying to close a legal loophole that technology enabled Aereo to exploit, the court blurred the boundaries around copyrights in a way that will chill investment and innovation. It would have been far better if the court had let Congress respond to a technological change it couldn't have foreseen 38 years ago.

Aereo ruling boosts calls for radio reform

Rep. Jerrold Nadler (D-NY) -- ranking member of the House Judiciary Subcommittee on Intellectual Property -- is working on a bill to, among other things, require radio stations to pay musicians for the songs they play, and he said the Aereo ruling may help his cause.

The decision “highlights that the court … and broadcasters support copyright protection,” said Rep Nadler. Requiring Aereo to pay to play broadcast content and requiring radio stations to pay to play songs is “the same principle,” he continued. “It sort of a contradictory position for them to hold.” MusicFIRST -- a coalition of music industry groups representing musicians, record labels and others -- also used the Aereo ruling to call for music licensing reforms. Broadcasters “commit the exact sin that they condemn in Aereo -- they use music as the foundation of their programming, yet refuse to pay the artists and labels who created the music a cent,” musicFIRST executive director Ted Kalo said. “As momentum builds in Congress to close the AM/FM performance loophole once and for all, [the National Association of Broadcasters] and its members may find their win over Aereo read back to them as Exhibit A in the case for fair pay for all creators across the board.” But broadcasters say the issues shouldn’t be conflated.

Watching Google’s Many Arms

[Commentary] Google’s software will soon reach ever further into our lives, sitting on just about every other device you encounter. The software will be available to help you look up any bit of idle curiosity or accomplish any task, anytime you desire. It’s an extremely far-reaching agenda — and that may be the company’s problem. For a company whose future depends on people voluntarily handing over their information in return for handy online services, Google’s very ambitions may now stand as its biggest hurdle. Is Google, in its globe-spanning reach, trying to do so much that it risks becoming creepy instead of helpful — the assistant who got too powerful and knows too much?

Google, Samsung Tensions Ease

The sometimes frosty relationship between Google and Samsung Electronics, the two dominant companies in the Android mobile ecosystem, showed signs of thawing.

Samsung claimed two prominent mentions during the keynote presentation at Google's annual developer conference: one for a new smartwatch that will use Google software, the other for security technology that Google will incorporate in a new version of its Android mobile operating system. In recent years, such partnerships looked less likely amid tensions between Google and some of the hardware manufacturers that make Android smartphones, tablets and other gadgets.

Benton

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