The Supreme Court and Technology: Why precedent doesn’t really work for the internet

By Brandon Bub
Jan. 4, 2015

SupremeCourt

This past New Year’s Eve, Chief Justice John Roberts issued his annual Report on the Federal Judiciary (think of it as akin to a “State of the Court” address, except with a lot less applause). Within the report Roberts announced that, the Supreme Court would have in place a system of electronic filing for briefs and legal documents related to its proceedings as soon as 2016.

I’m sure most of us are happy to hear that the Court has embraced the cutting edge technology of the 1990s. Indeed, it’s easy to mock the justices for being behind on the times: They still don’t allow the use of cameras during oral argument and they don’t communicate with each other via email, preferring print documents instead. As Roberts makes clear, however, it makes sense for the Court to be slower to adopt new technologies. Courts regularly deal with sensitive information and offer decisions that have far-reaching legal consequences, so if anything were to happen to compromise those decisions, it could be disastrous for anyone who is a party to such a lawsuit.

However, it’s also worth considering that the average age of the justices on the Supreme Court is 69 years. None of the justices are on Twitter. Most of them probably have iPhones, but I doubt any of them know how to code.

Now, you probably know where I’m going with this. The justices tend to be older, and old people don’t know how to use technology. When your grandma doesn’t know how to use Facebook, it’s endearing (especially when she writes on your wall IN ALL CAPS). When John Roberts doesn’t understand Facebook, it could affect hundreds of millions of American Internet users.

That’s a largely ageist assumption, but beyond that, I don’t expect the justices to be experts on Facebook’s algorithms in the same way that I don’t expect them to be experts on American/Israeli relations when they agree to take a case that affects State Department policy on Jerusalem.

This is how Google Maps displays the Supreme Court. Perhaps its true — on everything but technology.

This is how Google Maps displays the Supreme Court. Perhaps its true — on everything but technology.

Instead, I think there’s another issue that the digital age presents for the justices. As Selina Maclaren at Slate writes, “The problem is that the justices were groomed in a field that emphasizes reasoning by analogy…but emerging technology is, by definition, about breaking away from history.” Maclaren mentions an example from a 2006 case where Chief Justice Roberts seemed to doubt that eBay was an actual invention: “I may not be a software developer, but as I read the invention [of eBay], it’s displaying pictures of your wares on a computer network, and, you know, picking ones you want and buying them. I might have been able to do that.”

The problem here is that the Court, in rendering decisions, relies chiefly upon precedent, but sometimes it’s difficult for them to properly find precedent for technologies like cell phones and the Internet.

Consider a case from the Court’s previous term: American Broadcasting Companies v. Aereo. In that case, the tech company Aereo found a way to use thousands of tiny antennas to transmit broadcast TV to consumers over the Internet. Aereo was trying to circumvent existing copyright law, but the Court said that Aereo was effectively doing what cable TV providers were doing in the 1970s to steal broadcasts.

Indeed, that practice is exactly what caused the passage of the 1976 copyright law under which the Court decided this case. Aereo, however, is not a cable company; they were exploiting the law as currently written with a new technology. The Court seemed nevertheless uninterested in that distinction.

Perhaps the problem, however, is not that courts don’t know how to respond to these new issues; perhaps the problem is that they should not be the ones forced to address them in the first place. In statutory interpretation, the justices have to work with the rules given to them, but if they’re not given adequate rules, what kind of decision would you expect? Remember, that copyright law from Aereo was written in 1976. Congress has the power to change it. But, as Matthew Yglesias points out, “Everyone takes for granted that in this day and age Congress can’t rewrite the relevant laws.” As he continues, “While it’s true that it’s exceptionally difficult for a bill to become law…it’s not the case that policy stops changing. The judicial branch, through its power of statutory interpretation, is constantly changing the lived-experience of American public policy even if the legislative text stays constant.”

I hate to have to use the G-word here, but the truth is that when gridlock happens in Congress, legislating does not stop; it just changes forms (I believe that was Ezra Klein’s insight). The less Congress does, the more the judicial branch and state governments are forced to fill in the gaps.

Tech companies, however, are not going anywhere. For as much legal hot water companies like Uber and Airbnb might find themselves in, these companies are still worth billions. The Internet and smart technologies are only going to become more central to our lives in the coming decades, and if we can’t come up with new legislation to address these changes, expect more decisions akin to Aereo, and expect issues like net neutrality, copyright law and regulation of the “sharing economy” to become all the more salient in coming elections.

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