Technology and Methodology in Aereo and Riley

by Michael Dorf

The SCOTUS decided two technology cases yesterday, each of which may be more interesting for what it says about methodological issues than for what it says about how the Court evaluates technology.

1. ABC v. Aereo: In my prior post on this case, I said that I thought the crucial question was the one identified by Judge Chin in the district court: whether there is any non-copyright-evading reason for Aereo to structure its technology and business the way it does. I suggested an analogy to the substance-over-form doctrine of tax law. The majority appeared to be thinking along the same lines. By a vote of 6-3, the Court, per Justice Breyer, ruled against Aereo on the grounds that Aereo's retransmission of broadcast television is a "public performance," notwithstanding the fact that it only retransmits one subscriber at a time through a dedicated tiny antenna and storage.

The lineup in Aereo is interesting. The majority consists of the liberals plus CJ Roberts and Justice Kennedy, with a dissent by Justice Scalia, joined by Justices Thomas and Alito. If we code CJ Roberts as just slightly less conservative than Justice Alito (which I think is fair), then the case can be said to have divided the Court ideologically left/right. But that makes little sense. Conventionally, it is the left that argues for less protection for intellectual property, through the open source movement, "copyleft," etc. So what gives?

Well, for one thing, the left/right coding of debates over IP is imprecise. For example, Justice Ginsburg--perhaps influenced by her daughter (and my former colleague), copyright scholar Jane Ginsburg--takes a pretty robust view of what are sometimes called the moral rights of authors, and thus ends up as a copyright hawk. (See, e.g., her opinion in Eldred v. Ashcroft, from which both Justices Stevens and Breyer dissented.)

Perhaps more directly to the point, I think that Aereo divided the Court methodologically. There's some disagreement between the majority and the dissent over whether Aereo's business is more like a cable tv provider (majority) or a "copy shop that provides its patrons with a library card" (dissent). But the real divide seems to be over familiar questions of statutory interpretation. The majority says:
Considered alone, the language of the Act does not clearly indicate when an entity “perform[s]” (or “transmit[s]”) and when it merely supplies equipment that allows others to do so. But when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo’s performs.
That's good old-fashioned purposivism, here accepted by six Justices. But the three Justices who dissent are the three most hostile to purposivism (although Justice Alito is, in other contexts, less hostile to purposivism than are Justices Scalia and Thomas). Thus Justice Scalia responds with the textualist creed: "It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes."

Accordingly, the lineup in Aereo is best understood as reflecting purposivist versus textualist sympathies on the Court.

2. Riley v. California: Together with United States v. Jones, Riley displays a cross-ideological consensus on the SCOTUS for using the probable cause and warrant requirements of the Fourth Amendment to protect privacy against threats from new techonology. In Jones (decided in 2012) the Court unanimously treated continuous GPS monitoring of a car as a "search" requiring probable cause and a warrant, whereas in Riley, the Court unanimously holds that police may not routinely search the contents of a mobile phone after arresting a suspect, placing the mobile phone outside of the warrant requirement exception for a search incident to arrest.

The news, if there is any, is that the methodological differences among the Justices in this area appear to be narrowing. Although Jones was unanimous in result, the Court divided over rationale. For Justice Scalia and the majority, the case turned on extrapolation from Founding Era tort law, wheras for Justices Alito, Ginsburg, Breyer, and Kagan, it turned on the more modern approach regarding reasonable expectations of privacy.

Riley, by contrast, is nearly fully unanimous. The Court gets there by the following nifty move in the majority opinion by CJ Roberts:
Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
Thus, the Chief Justice gets Justices Scalia and Thomas onboard by making the functional analysis a backup to be consulted only where there is no "precise guidance from the founding era." And because the founding era will virtually never provide more than analogical guidance where new techonologies are involved, the Chief's move makes the relevant jurisprudence functional rather than historical.

The only hiccup is the partial concurrence/concurrence in the judgment of Justice Alito. He first says that he thinks the search incident to arrest doctrine was not always about safety of the officer, but he doesn't really run with that. His more interesting statement is he says that he might be prepared to reach a different conclusion if Congress weighed in with a well-crafted alternative. Although Justice Alito cites no academic authorities for this proposition, it sits at the intersection of two arguments: one by Orrin Kerr to the effect that the Court ought to be cautious and defer to Congress in the face of new technology (critiqued by Professor Colb here); and another, by Barry Friedman and me, arguing that in the context of the Fifth Amendment Miranda warnings, judicial remedies might be deemed default principles that can be superseded by Congress, where the latter provides alternative remedies that are at least as effective as those they supersede. It would be interesting to see how deferential to Congress the Court would be under Justice Alito's approach, but because he was the only Justice proposing it in Riley, it looks like we won't find out.