Communications of the ACM

Grabowksi notes that Chief Jus-
tice Roberts, while likely not a tech-
nologist per se, probably has a basic
understanding of technology, since
he said he probably “slept with his
BlackBerry” when he was a partner
with a major law firm. “On the other
hand, if you look at the transcripts of
the oral arguments for the past few
years, they do seem to reveal some
misunderstandings of basic technol-
ogies, such as text messaging, online
searching, V-chips, voicemail, and
even the Kindle reader.”
Grabowski is troubled that many
justices appear to be not only unfamil-
iar with technology’s inner workings
but, more problematically, also with
the ways people can use the technol-
ogy, both in regular use and how the
technology can be exploited in more
nefarious ways.

“The implications are profound,”
Grabowski says. “Speech, expression,
and living have become intertwined in
technology. If we’re ever to have a case
involving Snapchat selfies and eDiscov-
ery, we could be in trouble.”
One of the primary reasons for a
lack of familiarity or comfort with tech-
nology is the average age (currently
67. 5) of the Supreme Court Justices,
according to the Hon. Richard Posner,
a judge of the U.S. Court of Appeals for
the Seventh Circuit who, at 75, is actu-
ally older than many of the Justices.

“To the extent that judges, includ-
ing Supreme Court Justices, have had
any scientific education, it was many
years ago, and how many of us have
kept up?” Posner asks. “When I went to
law school, there was no instruction in
technical matters.”
The question remains: Will the
Court feel comfortable making broad
rulings on high-profile technology-
related cases that have significant
implications for the lives of everyday
Americans? While the NSA surveil-
lance case likely will require addition-
al scrutiny by lower courts before it
makes its way to the Supreme Court,
technology-based cases expected to
come before the court in 2014 include
Aereo vs. American Broadcasting Compa-
nies, Alice Corporation Pty. Ltd. vs. CLS
Bank International, and Limelight Net-
works vs. Akamai Technologies.

The Aereo case is focused on the
applicability of copyright licensing
fees paid when a program is streamed
to paid users over the Internet. Aereo,
a streaming-media company, claims
paying retransmission fees is not nec-
essary since the company installs an
antenna that receives free high-defi-
nition over-the-air broadcast signals
for every single customer that signs up
for its monthly subscription service.
Broadcasters claim the retransmis-
sion of network signals without pay-
ing retransmission fees is a violation
of copyright law.

Meanwhile, Alice Corporation Pty.

Ltd. vs. CLS Bank International and Limelight Networks vs. Akamai Technologies each focus on patent law. In the first case, the Court must decide whether claims to computer-imple-mented inventions are able to be patented under current patent law. The second case covers the applicability of patent infringement restitution in cases where no one has committed direct infringement.

Mary-Rose Papandrea, author of “Moving Beyond Cameras in the Courtroom: Technology, the Media, and the Supreme Court,” a 2012 paper published by Brigham Young University Law School, explains that based on previous rulings on technology-based cases, the Supreme Court is unlikely to issue broad new rulings. “These opinions reveal that the Court is often cautious in the face of technological developments, not because the Justices do not understand those developments, but