The Justices, Technology, Aereo: What the Oral Argument Revealed
Written by Andrew McDiarmid
A fair amount of ink has been spil—er, pixels have been intermittently darkened over the US Supreme Court Justices’ general technical savvy and their grasp on the service at issue before them in the oral argument in ABC v. Aereo. That kind of coverage is a frustrating distraction.
Yes, it can be worrying when a Justice makes comments that reflect an inaccurate understanding of a particular technology because it may augur a bad decision based on bad information. But judges, especially in higher courts, are necessarily generalists; they make legal decisions based on detailed fact-patterns from a huge variety of fields. To expect any of them to be expert on any particular field (other than law) is unreasonable. Nor should they be tech exceptionalists. They need to develop interpretations of the law that apply broadly and reflect deeper principles than the snark of “the Internet is special; you wouldn’t understand.”
So it doesn’t really matter that they referred to phonographs, mixed up i-names, or listed HBO among other content streams Aereo could conceivably offer; what matters is that they were trying to place Aereo in context among similar and dissimilar services, and that they understood that their decision has implications for lots of things beyond Aereo and the broadcasters. It’s the job of the parties in a case, and the role of expert amici (like CDT and its allies), to provide the Justices with clear, accurate information that helps them identify which facts are relevant to the application of the law in the instant case, and what the consequences will be. It’s the Justices’ job to ask questions, however strained- or bizarre-sounding to techie ears, in order to interpret what’s before them.
And beyond all the technical nits we could pick, what the Justices clearly expressed throughout the argument was awareness of and concern for the impact their decision could have on cloud-based services. Kagan and Ginsburg asked key questions about the degree to which Aereo offers programming choices; Sotomayor probed on comparisons to cable systems, Netflix, Roku, and Dropbox; Alito and Kennedy focused on perhaps the most important comparison, the Cablevision remote DVR; and Breyer was openly concerned about how to write an opinion that didn’t adversely affect a wide range of other technologies. All of this is a good sign. Our brief and others were devoted to making sure the Court is aware of these implications, and we saw the Justices examining exactly the right distinctions through their questioning – exactly what they need to do in order to make a good judgment in what is, quite frankly, a difficult case.
There’s a broader point here, too: Judges and policymakers won’t understand technology and its implications at anywhere near the depth and passion of the tech-savvy unless technologists show up and weigh in. Early adopters, engineers, and venture capitalists shouldn’t expect that everyone else will know the emerging tech space as well as they do. Rather, they should recognize that others don’t (and likely never will) and hence need their involvement and input in order to make good law and policy. That’s why we work for CDT, which alongside other advocates and trade associations is committed to deeply understanding both technology and policy so that each can inform the development of the other. Whichever way the Justices decide in Aereo, and however they use their clouds, we’re optimistic after the questioning that they will tread carefully to try to avoid the implications we helped bring to their attention.