I thought two recent Supreme Court cases were especially interesting.

In Riley v California, the court ruled police need a warrant to search your cell phone. The court recognized that your phone contains so much information, it deserves Fourth Amendment protection.  Justice Alito made an interesting point though:  if you’re arrested carrying your phone bill and your cell phone, the police can use the call log information on bill.  But if you have just your phone, they need a warrant to get the call log.  But, he conceded he does “not see a workable alternative”.

ABC v Aereo, Inc. is less straightforward.  Aereo is the company that rents out tiny antennas in Manhattan, so users can stream broadcast TV on-line. The court found Aereo infringed the Copyright Act, which says that copyright holders have exclusive rights:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, …..

(Emphasis added).  This “transmit clause” (2) was added in 1976 in response to cable TV, when Congress noted:

… the Committee believes that cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and that copyright royalties should be paid by cable operators to the creators of such programs.

By using individual antennas, Aereo tried to thread the needle on the semantics of “public” and “perform” and most of the court’s opinion addresses that hair splitting.

This is a pattern we’ll see more and more:  companies using new technology to go right up to the edge of the law (nobody imagined private antennas in 1976) and courts splitting legal hairs to (try and) sort it all out.