We’ve gotten so used to the Supreme Court deciding major policy issues that it is easy to forget how inadequate is that forum for deciding cases in which cutting-edge technology is involved. If you doubt this, the oral argument at the Supreme Court in American Broadcasting Companies, Inc. v. Aereo, Inc might convince you never to send such issues to the court.
In Aereo, Lyle Denniston explained:
The legal issue before the Court is misleadingly simple: is Aereo violating copyright law with its system of renting out thousands of tiny antennas to a growing throng of customers so they can pick and choose the TV programs they want to watch, pulling them from “the cloud” whenever the mood stirs them to do so?
Chief Justice John G. Roberts, Jr., repeated several times his perception that the only reason Aereo put that system together was to engineer its way around the copyright laws. And, as a general matter, his skepticism seemed to be fairly widely shared across the bench.
If a previous case involving Cablevision, holding individual consumers do not technically create a “performance” without permission that would otherwise run afoul of the copyright laws, is still good law, then Aereo is home free. But how do some 50-something and 70-something justices parse the finer points of technology? Not well:
In the digital age, perhaps only someone as old as Justice Stephen G. Breyer (or older) would fret about what might happen to a store that sells “phonograph records.” It is doubtful, in the extreme, whether there are any of those anymore, but no matter: Breyer and other Justices searched on Tuesday for ways to demonstrate that they want to be careful about what they do about today’s modes of entertainment. . . . After Justice Breyer first got such a worry on the table with his antique reference to wax recordings of music that are played with a needle, of all things, Justice Sonia Sotomayor did a bit of updating, and asked about the impact on “the Dropbox and the iCloud.” She confessed her concern, saying “this is really hard for me.” She was, of course, looking for reassurance. . . .
The exchanges continued in that vein with a federal government lawyer, Deputy Solicitor General Malcolm L. Stewart, who is mostly siding with the broadcasters. He seemed to have a little less technical knowledge than some of the Justices, but that did not much deter him from suggesting that the Court need not worry much in this case about “the cloud,” which he seemed to prefer calling “pure cloud locker service.”
At one point Justice Samuel Alito pleaded with the broadcasters’ attorney, ” I need to know how far the rationale that you want us to accept will go, and I need to understand, I think, what effect it will have on these other technologies.” Later Breyer confessed that “what disturbs me on the other side is I don’t understand what the decision for you and against you when I write it is going to do to all kinds of other technologies. I’ve read the briefs fairly carefully, and I’m still uncertain that I understand it.”
Stop! We’ve got government lawyers who don’t understand the technology arguing to justices who don’t understand it either, and an entire sector of our economy might be effected? Maybe this would be a good time for the court to issue a DIG (dismiss as improvidently granted), which is the justices’ way of saying, “Get us out of here!” It’s not clear abject lack of expertise is grounds for a DIG order, but this should remind us all that courts really don’t fare well when trying to figure out technically sophisticated fact-patterns.