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June 01, 2017 HUMAN RIGHTS

Technology in the Courts: More Questions Than Settled Legal Answers

by Lisa A. Hayes

Technology is evolving faster than legislation can be passed, and the burden of settling policy disputes increasingly falls to the courts. While most judges do not have technical backgrounds, we should encourage jurists to increase their understanding of technology so they are able to craft decisions rooted not only in law, but in reality.

As of September 2016, 87 percent of Americans and 99 percent of all 18- to 29-year-olds are online. We use the Internet to shop, pay bills, make political donations, and communicate with our lawyers, doctors, and accountants. Almost 70 percent of adult Americans use a smartphone to talk, text, email, snapchat, tweet pictures, hail a ride, or organize their lives. However, the U.S. Supreme Court has not similarly embraced the technological revolution. Only two of the justices are known to have a work email account; instead, the justices have their memos hand-delivered to each other.

This distance from technology can be seen in the Court’s questions and opinions. In United States v. Wurie, a 2014 case, the Court queried whether one might reasonably suspect a person carrying two phones of dealing drugs. Only four years earlier—and a full decade after text messaging was widely adopted—the Court heard oral arguments in City of Ontario v. Quon, where the Court focused on who “owned” text messages and asked questions about the difference between email and a pager. One justice queried what would happen if a text message was sent to a recipient at the same time he was texting someone else. “Does it say: ‘Your call is important to us, and we will get back to you?’” The Court also appeared baffled by the notion that text messages had to be routed through a service provider: “Well, I didn’t—I wouldn’t think that. I thought, you know, you push a button, it goes right to the other thing.”

In 2013, 73 percent of online adults were on a social networking site. That same year, Justice Antonin Scalia discussed the Internet with New York Magazine: “For example, I don’t know why anyone would like to be ‘friended’ on the network. I mean, what kind of a narcissistic society is it that people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.” In a case arguing that cell phones should not be subject to a warrantless search after arrest, one justice asked whether that same standard should apply to a compact disc. In a 2006 patent case, being told that the electronic market created by eBay was the company’s invention, the chief justice responded, “I mean, it’s not like he invented the internal combustion engine or anything. It’s very vague.” Another justice has asked questions about “Netflick.”

While many examples simply elicit a chuckle in response, at times the Court’s lack of knowledge moves from an amusing anecdote to an admitted inability to understand the technical issues. For example, the company Aereo was created to allow users to stream local, over-the-air broadcasts to multiple devices, but did not cover cable channels or premium subscription services. Viewers visited Aereo’s website and selected the programming they wished to view; Aereo then tuned a tiny, dedicated antenna to the relevant station, captured the signal, and retransmitted the signal to the particular customer who requested it. This allowed the customer to watch the program on any networked device. Aereo’s technology was innovative, and was designed and engineered specifically to create a new business model within the existing legal framework. However, questions from the bench in ABC v. Aereo showed a lack of familiarity with cable and network television. One justice appeared dubious that HBO was a premium channel requiring a subscription or additional payment. Another suggested that clicking links to watch video on the internet was analogous to turning the knob on a 1970s TV. At oral argument, Justice Breyer was candid: “And then what disturbs me on the other side is I don’t understand what the decision for you or against you when I write it is going to do to all kinds of other technologies,” said Breyer. “I’ve read the briefs fairly carefully, and I’m still uncertain that I understand it well enough. That isn’t your problem, but it might turn out to be.” For Aereo, at least, it turned into their problem—the company lost the case and was forced to suspend services.

But the Supreme Court is not alone, and the lower courts are faced with novel technology questions every day. In this year’s Apple v. FBI, there appeared to be a genuine misunderstanding about how encryption works. The FBI argued that Apple had cooperated in the past to unlock dozens of phones in other cases and should unlock the iPhone at issue. However, this ignored that in 2014, Apple altered its software to ensure that it would not be able to unlock customer phones and decrypt their data. Apple’s adoption of encryption was not made in an effort to thwart law enforcement, but rather to protect phones from malicious hackers and thieves.

Cases involving new technologies are rapidly coming up through the courts. Does a property owner have the right to shoot down a low-flying drone? When should police body cameras be activated, and how long should they store footage? Airplanes and cars no longer require human operators; who will be held liable for an accident? The owner, the seller, or the programmer who wrote the underlying algorithms?

It will take years for these cases to make their way to the Supreme Court, and the technologies will dramatically evolve during that time. Each judge along the way must do his or her best to become familiar with the underlying information technology, think about its sweeping implications, and understand how most of our society engages with the product or service. Today’s judges will shape the law governing tomorrow’s technological advances. It is incumbent upon all of us to explain the technology before they issue their decisions.

Lisa A. Hayes is the vice president for programs & strategy for the Center for Democracy & Technology (CDT), a nonprofit organization that promotes democratic values by shaping technology policy and architecture. CDT supports laws, corporate policies, and technological tools that protect privacy and security and enable free speech online.