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June 25, 2014

Supreme Court Decision Day

Big ones today:

American Broadcasting Cos., Inc. v. Aereo. Justice Breyer writes for a 6-3 majority. The high Court finds that Aereo does publicly perform copyrighted works when it broadcasts them to consumers. That decision is here (PDF). I suggested that this would be the outcome, largely because Aereo's service was specifically designed to avoid copyright infringement by taking advantage of a court-created carve-out in another matter. What the courts can create, they can destroy, and Aereo was just begging for it.

In sum, having considered the details of Aereo’s practices, we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within the scope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act.

Justice Scalia, along with Justices Thomas and Alito, dissents.

The other big one today is the cell phone privacy cases, Riley v. California and U.S. v. Wurie. This involves searches of the cell phone memory itself incident to arrest and without a warrant, not interception of cell phone signals and whatnot. The Chief Justice wrote a very strong decision emphasizing the privacy concerns involving cell phones. That decision is here (PDF).

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

Tomorrow is the next decision day. We're still waiting on my remaining big four.


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posted by Gabriel Malor at 10:33 AM

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