The Supreme Court issued two major technology-related decisions today involving how we watch TV and when police can search our cell phones. The court said police must obtain warrants to search cell phones in an age when they contain extensive and highly personal data. The court also said start-up antenna company Aereo is effectively like a cable company and has to play by the same rules–a big victory for the broadcast industry that was threatened by Aereo’s new business model. Kojo explores what the two rulings mean for consumers.

Guests

  • Cecilia Kang Washington Post Technology Reporter
  • Harley Geiger Senior Counsel and Deputy Director, Project on Freedom, Security and Technology at the Center for Democracy and Technology

Transcript

  • 13:06:37

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, the high cost of cheap shrimp, new reporters about human trafficking in the international seafood industry. But first, two major Supreme Court rulings involving technology and information. Today a unanimous Supreme Court ruled that police need warrants to search the smart phones of suspects. Law enforcement agencies have argued that such warrantless searches were essential, in certain circumstances where digital evidence could have been destroyed.

  • 13:07:22

    MR. KOJO NNAMDIBut the court clearly disagreed. Earlier in the morning, the nations broadcasters won a major victory when a divided court ruled that a start up antenna company called Aereo was violating copyright by retransmitting broadcasts outside the traditional cable TV model. Taken together, the two cases will significantly impact tech companies, consumers and government regulations. Joining us to discuss is it is Cecilia Kang, Washington Post Technology reporter. She joins us by phone. Cecilia Kang, well thank you very much for joining us.

  • 13:07:59

    MS. CECILIA KANGThank you for having me, Kojo.

  • 13:08:00

    NNAMDIAnd Harley Geiger is senior counsel and deputy director of the Freedom, Security and Surveillance Project at the Center for Democracy and Technology. Harley Geiger, thank you for joining us.

  • 13:08:12

    MR. HARLEY GEIGERThank you.

  • 13:08:13

    NNAMDIIf you have questions or comments, give us a call at 800-433-8850. Do you agree with the Supreme Court decisions on smart phones and Aereo, 800-433-8850. You can send email to kojo@wamu.org. Harley, I'll start with you. Here we have two cases involving two devices that have an outside influence on many American lives. The screen in their living room and the screen in their pocket. Let's start with the Supreme Court's unanimous ruling on smart phones and privacy.

  • 13:08:46

    NNAMDIIn April, the court heard two cases involving police searching smart phones without a warrant in Riley v. California. They heard the case of a San Diego man who was pulled over, in 2009, for having an expired auto registration, after the police found loaded guns in his car, they inspected his smart phone and found evidence that tied him to gang activities and murder. The second case, U.S. v. Wurie involved a different drug conviction in Boston. What did the court find?

  • 13:09:18

    GEIGERWell, the court found that the individual, his cell phone was being called by somebody that was at his house. And so when officers opened up the phone and looked at the call log, they traced the number to that suspects house, and there -- they got a search warrant and found drugs, firearms and ammunition. And so the question that the court was facing in both of these cases was whether law enforcement could search the contents of a cell phone without a warrant.

  • 13:09:48

    NNAMDICecilia, this unanimous decision could have a big impact on the entire tech sector, could it not?

  • 13:09:55

    KANGOn the cell phone case?

  • 13:09:57

    NNAMDIYeah.

  • 13:09:57

    GEIGERWell certainly, because there's -- there are big issues over privacy and, and how far these companies can go. I mean, I should tell you that I've been following the Aereo case a little more closely. So that I can speak a little more comfortably about.

  • 13:10:12

    NNAMDIHarley, there have always been circumstances where courts have allowed certain warrantless searches in connection with arrests, especially when the lives of police officers were believed to be in danger. In what ways is a search of a phone similar and in what ways different from those old ideas of searches?

  • 13:10:29

    GEIGERWell, that's right. So law enforcement has long had the right to search a person of, of somebody that is arrested such as the items in your pocket. They can also search the area immediately, in that persons control like a car passenger compartment and they can do that without a warrant. And supposedly on grounds of officer safety and preventing the destruction of evidence. And when it comes to cell phones. The Supreme Court actually found a qualitative difference in searches of information on cell phones.

  • 13:10:59

    GEIGERThey said that it implicates neither of those two interests. It does not implicate officer safety and -- although there is a minor threat that evidence can be destroyed such as by a remote wipe of the phone by the arrestee's accomplices. The Supreme Court found that that threat was very attenuated and that the -- allowing for warrantless searches of cell phone contents incidents who arrest is maybe not even going to help. Instead, the court, very encouragingly, recognized that there's a heightened privacy interest that we all have in the date contained in our cell phones and in other digital devices.

  • 13:11:40

    GEIGERThey noted that cell phones, unlike the items in your pocket, can access a long history of your communications, your calendars, contact lists, photos, documents and a lot more. And that because of that extensive quantity and that very sensitive quality of information in your cell phone, the search of the cell phone deserves warrant protection from government intrusion.

  • 13:12:05

    NNAMDICecilia, the court was more divided in the Aereo case, arriving at a six to three decision about the company that captures and streams the broadcasts signals of major broadcast companies. Remind us about how Aereo works and about what the court decided.

  • 13:12:21

    KANGAereo is a streaming video technology company that captures the signals, the shows of broadcasters, over the public airways. And they do that by assigning individual antenna's, really small antenna's, about the size of a dime to each of the subscribers. Then it stores the programs that are captured over the airwaves into storage files and then streams onto a subscribers devices of their choice. So they can watch, for example, live football, American Idol, whatever's on the broadcast networks at the time of their choice and on the device of their choice.

  • 13:12:59

    KANGThe problem is Aereo charges its subscribers 8 to $12 a month to have this service and it does not pay the big broadcast networks and that includes ABC, CBS, NBC, Fox, PBS. It does not pay those broadcasters for the licensing fees that, say, a cable company would, to do the same thing. And ultimately the justices' decided in a six to three ruling, that Aereo really operates and looks too much like a cable company to not do and not to be held to the same legal standards, copyright standards that the cable companies do. So in this decision, they decided that Aereo actually violated copyright law.

  • 13:13:43

    NNAMDIEven though Aereo made the argument that it was not doing anything that an individual owner of a television set with rabbit ears would be able to do at home, it was just doing it in larger volume? Cecilia, Justice Antonin Scalia wrote the decent finding that Aereo did not violate the copyright act as the broadcasters contended. But even so, he agreed with the sense of the majority that Aereo's business model should not be allowed. What does, therefore, the decent say?

  • 13:14:14

    KANGWell, decent says that he, he said that the majority had twisted the statute to produce a just outcome. But ultimately, as you said Kojo, he agreed with, sort of, the spirit of the overall, the overall conclusion of the other six justices'. And this was written by -- this opinion was written by Justice Stephen Breyer.

  • 13:14:34

    KANGAnd in that, in this opinion, they basically said that this company, even though it says it is basically an antenna and cloud storage rental service, that's sort of the way that they, they market it and describe themselves, he was saying, he and, and the other -- well, actually the other justices' said that, in fact, they are not paying -- they are, they're not complying with copyright law for, for programming that is protected.

  • 13:15:02

    KANGAnd not asking permission and charging their subscribers for, for content that, that does not belong to them. And in fact, the broadcasters themselves, would just -- and they essentially say that, Aereo steals their shows. And that is essentially what the justices' agreed with in the end.

  • 13:15:19

    NNAMDICecilia Kang is Washington Post Technology reporter. She joins us by phone as does Harley Geiger, senior counsel and deputy director of the Freedom Security and Surveillance Project at the Center For Democracy and Technology. Harley, I know this is not your area of expertise but please feel to jump in, if you have a comment about this. Cecilia, Aereo lets people either watch their shows live on a computer, tablet or smart phone or record them and stream them later. Some people were worried that a ruling against Aereo could apply to other cloud storage businesses. Did the court address that concern?

  • 13:15:55

    KANGThey did. And what they did try to do is to separate the two questions, the copyright question and the, and the question as it pertains to the capturing of these, these shows on the, the airways and then the storage of these shows on the cloud which is what they do. And Aereo, itself, had warned quite a bit that, you know, be careful justices', if you, if you rule too broadly, you could actually implicate a much broader technology industry that includes Dropbox, The Storage System, Google with its cloud storage apps, Microsoft, so many companies that use them, I mean, every company -- tech company, at this point, has been moving towards the cloud.

  • 13:16:34

    KANGBut the justices' had said that, the justices' were careful to distinguish about other technologies. They say that, Breyer wrote, quote "given the limited nature of this holding, the court does not believe its decision will discourage the emergence or use of different kinds of technologies." And he was really pointing to cloud technology. And so far, in the analyst -- the analysts that I've spoken to, agree that this decision was narrow enough to separate the question of cloud computing and whether cloud computing will be implicated in this case from the, the question of copyright violation from just taking the, the shows off the airwaves and not paying a licensing fee.

  • 13:17:13

    KANGSo even though the decision was a, as a straight loss for Aereo, it does not -- it's not necessarily a straight loss for the cloud computing industry which was really the fear of, of the broader technology industry. And when I heard the oral arguments in April, the justices' were very careful in their questioning, to make sure that they understood what the implications could be for the broader cloud technology industry.

  • 13:17:38

    NNAMDI800-433-8850 is the number to call if you'd like to join the conversation, if you have a question or comment about either of these rulings, you can also send email to kojo@wamu.org. What changes would you like to see in the telephone and smart phone industries? Do you agree with the Supreme Court decisions in the smart phones and Aereo cases? 800-433-8850. Cecilia, the ruling is a victory for broadcasters in a case that could have upended the long standing model of cable television subscriptions. What would a ruling in favor of Aereo have meant?

  • 13:18:14

    KANGWell the ruling in favor of Aereo would've meant that, not only could Aereo survive and thrive with its current business model, but there could be copycats, there could be other companies that do similar things like Aereo does. And the way that this disrupts the broader television industry is that consumers are increasingly turning to the internet for more entertainment. And the one piece of the television puzzle, if you will, that's not available fully online is live TV.

  • 13:18:45

    NNAMDIYep.

  • 13:18:45

    KANGIt's the live football games, it's the, you know, award show, etcetera. And what Aereo would've allowed you to do is to get what the broadcast networks were doing, with the convenience of streaming that online. And -- in so to do that, it could be just enough for these consumers and a growing number of consumers, who are cobbling together with the broadband subscription, enough applications and services like Netflix, Hulu and, and, you know, until today, Aereo, enough to make them really rethink whether it was worth keeping their cable subscription.

  • 13:19:20

    KANGAnd so, it really, what the big fear was that this could lead to what's known as cord-cutting, cable cord-cutting and people leaving their, their cable subscriptions in order to have a more fuller experience online, that could be an experience that's actually, potentially, cheaper and more at the control of a users choice because you're not choosing from a big bundle of cable television channels, you are potentially the, sort of, the dream of some cable cord-cutters, is to be able to choose ala carte, whatever you want to watch online.

  • 13:19:50

    KANGAnd Aereo provided, as I said, this, sort of, important piece of the puzzle that's not available online which is the most popular live programming, provided by broadcasters.

  • 13:20:00

    NNAMDIWhat does the ruling mean for the future of the broadcast and cable industries, at least in the short term?

  • 13:20:06

    KANGIn the short term, it means more of the same. It really does. For consumers who are looking for alternatives, it just means that this, this idea of cable cord-cutting, for example, may be, a little less appealing for the -- going forward because you won't have some of that live programming you want until -- and this is until, Kojo, the broadcasters decide themselves that they want to put more of their content online which they are slowly doing it. But that's the key thing. They're doing this very slowly.

  • 13:20:34

    KANGThe other thing that Aereo could've done is it could've disrupted this very sort of friendly unfriendly relationship that the cable companies have with the programmers, the networks whom they pay very large fees in the billions of dollars for the right to retransmit broadcast content onto their cable networks -- onto their cable bundles. And what this could've done is given the cable companies much more leverage to lower those fees, as those programming costs have gone up quite a bit.

  • 13:21:09

    KANGAnd also, you know -- and we've seen the result of this sort of tension in that relationship in television blackouts. You know, notoriously a year ago Time Warner Cable and CBS had such a fight over renegotiating retransmission fees that Time Warner Cable subscribers had CBS content blacked out from their cable subscriptions. And so in those situation, you could see the cable companies have much more power in those negotiations.

  • 13:21:38

    KANGYou would also -- I mean, potentially the cable -- some cable companies have even said that they would consider following Aereo's model and either partnering up with Aereo to do the same to avoid those retransmission fees or doing something similar to what -- coming up with their own technology that's sort of similar that's sort of a loophole or a workaround to the copyright laws that they're -- and the regulatory structures that they're beholding to.

  • 13:22:06

    NNAMDIIn terms of the law, Cecilia, the case rested on public versus private performances. What does that mean?

  • 13:22:14

    KANGIt's such an interesting -- this is actually the core of the case. So under copyright law if you publically perform, meaning if you -- if your distribution of content is to the public, you must ask the person who holds the copyright of that material for number one, permission and most likely to pay a fee for that. And that's why cable companies pay the broadcasters what's known as retransmission fees.

  • 13:22:41

    KANGBut Aereo argued that these were not pubic performances because everyone of its subscribers was assigned an individual antenna and an individual storage file to for -- to store the actual programs that they decided to record. And by doing that Aereo argued that these were private performances, really no different, the company argued, from somebody using rabbit ear technology, you know, rabbit ear antennas on their home TV. And all they did was provide the equipment remotely is what they -- again, you know, this argument that they were just a rental -- you know, an antenna rental service.

  • 13:23:22

    KANGAnd so they were saying, this is really no different from that private act of a consumer taking it upon themselves to make the choice to capture whatever shows they wanted to on both the public airwaves, the broadcast airwaves. And so in that way they said that they're not held to the same public performance mandates under copyright laws that other companies are.

  • 13:23:46

    NNAMDIOnto to the telephones. Here is Gary in Rockville, Md. Gary, you're on the air. Go ahead, please.

  • 13:23:53

    GARYHi, thanks for taking my call, Kojo. My complaint is with the cell phone companies requiring a data plan with Smartphones. I don't have a Smartphone, but I would have one if I didn't have to pay the upwards of $40 for a data plan. Instead I use an iPod Touch and just a dumb cell phone. And, you know, there's just no way to get it. I mean, at least with the major carriers.

  • 13:24:23

    NNAMDIYou know, Harley Geiger, this Supreme Court ruling, the unanimous one has an interesting side effect that impacts people like Gary. Had the ruling gone the other way, would cell phone companies have been less aggressive about pushing their data plans if it became apparent that the police without a search warrant could simply snatch your cell phone and go into your data?

  • 13:24:44

    GEIGERYou know, I can't speak for what the cell phone companies would do. I think that many people clearly do want data plans and it's a big business. But I think that if the court had gone the other way the most major thing that we would have seen as a result is that our cell phones would be routinely searched. They are a wealth of information, as the court recognized, and therefore has a heightened privacy risk. But it's also very useful to law enforcement.

  • 13:25:12

    GEIGERAnd so we would be -- we would likely have our cell phones and other digital devices, like the gentleman's iPod Touch, searched every time that any of us are arrested. And it should be very clearly noted that the vast majority of arrests do not lead the charges or convictions.

  • 13:25:29

    NNAMDIThank you very much for your call, Gary. Harley, we have two different cases here but a common denominator is justices who are not themselves digital natives who have steep learning curves when it comes to technical issues. How well do you think the court system understands the issues it's being asked to weigh in on?

  • 13:25:48

    GEIGERI think that there is a great deal of education with regard to digital technology and the legal issues that underpin a lot of our society today. I mean, a lot of our rules, particularly privacy rules are simply out of date because they were made for an earlier era. That being said, although the court -- the Supreme Court specifically, but other courts as well, the Supreme Court does get a lot of flak for supposedly not being in tune with modern technology. We do think that they got this decision right.

  • 13:26:24

    GEIGERThere were a number of different other options that they could have taken. For example, they could have said, well, officers can search cell phones perhaps only for evidence of criminality or perhaps just to confirm a person's identity. And that would have been a naïve ruling because that would have posed very little constraints on the ability of law enforcement to search the phone. And they didn't go in that direction. Instead they recognized the vast amount of information that we all have at our fingertips, in our pockets and decided to give it full Fourth Amendment protection.

  • 13:26:57

    NNAMDICecilia Kang, same question to you. I, for one, thought that Aereo might win this ruling simply because the technology that it is using is significantly different to the technology that the cable companies are using. The Supreme Court seemed to think it's a distinction without a difference.

  • 13:27:13

    KANGYeah, I mean, the copyright law that was the foundation of this case is four decades old. And certainly it's difficult to apply current technology to such, you know, a time when either cell phones weren't even in people's pockets and cloud computing wasn't even invented. The internet wasn't even being used. So these are big questions but the justices in the oral arguments really took pains to try to understand Aereo's technology. I will -- that was for sure.

  • 13:27:45

    KANGThere was a lot of very specific questions about cloud technology and what does it mean to be a communication provider, etcetera. But the fact of the matter is, Kojo, as you mentioned, the consumers habits are far out pacing regulation and law. And that's always been the case. And just, you know, right after the Aereo decision, the House Energy and Commerce Committee put out a statement saying, you know, this is another reason why we have to reevaluate the Communications Act of -- you know, of the '90s. And this is something that they want to do.

  • 13:28:17

    KANGBut just, you know, can you imagine the House coming up with a new communications law today that, you know, for example, what if it were to capture and try to address the question of the role of Google in today's communications landscape? In five years that might be dreadfully outdated again. So this is sort of a common theme.

  • 13:28:38

    KANGAnd I think the problem is that a lot of public interest groups point to is that consumers really -- you know, at the same time -- they're not getting -- the internet should provide cheaper services and more convenience. But some consumers are not getting that because some of the best and most valuable programming and content is held by companies that have been around for a long time and they're quite powerful and are reluctant to move too much online too quickly because the money isn't there yet for them.

  • 13:29:15

    NNAMDICecilia Kang is Washington Post technology reporter. She joined us by phone. Cecilia, thank you for joining us.

  • 13:29:21

    KANGYou're very welcome.

  • 13:29:22

    NNAMDIHarley Geiger is senior counsel and deputy director of the Freedom Security and Surveillance Project at the Center for Democracy and Technology. Harley, thank you for joining us.

  • 13:29:31

    GEIGERMy pleasure. Thanks for having me.

  • 13:29:32

    NNAMDIWe're going to take a short break. When we come back, the high cost of cheap shrimp, new reports about human trafficking in the international seafood industry. I'm Kojo Nnamdi.

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