COURT CONTINUES TO MISUNDERSTAND HOW WE USE TECHNOLOGY

The Supreme Court continued its trend of significant decisions today, issuing rulings in favor of copyright holders over technological innovation (ABC v Aereo) and in favor of upholding privacy rights in the face of police searches (Riley v California). While the decisions were broad in scope, they also both created substantial unanswered questions that the Court is essentially pleading with Congress to resolve. From a political standpoint, that appears unlikely, and I predict both of these issues will be back before the Court in the not too distant future.

Looking first at the Riley case, the Court held cell phones contained private information which the police are not entitled to review merely incident to an arrest. Unlike the contents of your pockets or items in plain view, the government now cannot access your cell phone without a warrant during an arrest. This rule applies to both smartphones and so called dumb phones alike (the police viewed the incoming caller ID in one of the defendant’s older style flip phones to determine where he lived), and actually signals real concern for future business cases.

While this may seem like a boon to privacy advocates, there are holes in this ban big enough to steer Google’s self driving car through. First, there are exceptions for when the police believe they need to access your device in exigent circumstances. No warrant is required when the police are trying to prevent a disaster, or save someone else. Second, the Border Search exemption does not come up in this case. This exemption, still on the books but possibly overruled by today’s decision, allows for a warrantless customs search anywhere within 100 miles of an international border. That includes our offices in Philadelphia, and most of the population of the US who live within 100 miles of an international coastline. Is every police search now going to have a customs element to get around the Riley decision?

The bigger concern with this decision, from a business perspective, is the growing use by the Roberts Court of anecdotal evidence not truly before the Court. The Riley decision in some ways is based upon a faulty understanding of technology and how we interact with it on a daily basis. Justice Roberts cites to the iPhone User Guide as definitive proof that “Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity.” While many phones have this feature, it’s frequently not used. Various surveys have shown between 40% to 70% of cell phone users don’t lock their phones. The Court similarly dismisses out of hand the potential for automatic wiping via geofencing as simply not a real concern. I’ll grant Justice Roberts that most criminals are not IT specialists, but it’s not difficult to set up a directive for your phone to be wiped if it enters the local police station. In fact, the controls to set that up are right in the apps at the heart of the Riley decision. Finally, the Court suggests merely turning the phone off or removing the battery as a way police can prevent a remote wiping signal, failing to understand that (i) many, if not most, new smartphone have integrated non-removable batteries; and (ii) a phone is not rendered completely inaccessible simply because it’s turned off.

The problem here is not holding itself, which may actually be a bit of a pendulum swing against the destruction of privacy standards we’ve seen since 9/11. Rather, the issue I see is that the Court continues to decide cases based upon a misunderstanding of how people interact with technology. This has led to, and will continue to create, decisions which raise significant business issues. We’ll have more in the next few days on the Aereo decision, which even the Court acknowledged will hang over SAS and cloud computing services for some time to come. But in the meantime, it’s clear that if we are going to continue to see technological growth, Congress needs to get on the ball and deal with some of these issues before they’re dumped at the courthouse steps.
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We see the potential for business opportunity arising from the decisions put forth today by the Supreme Court. If your business is ready to capitalize on this changing landscape and you have any concerns for legal guidance, please feel free to contact the lawyers at Danziger Shapiro to discuss this and other business concerns you may have.