It can be argued that we're always on the cutting edge of technology -- every day there are new advances, and new techniques developed to do legacy tasks some other way. Likewise, hardly a day goes by without a new lawsuit from an entrenched company, claiming that this new way somehow infringes upon, or unfairly penalizes, an old-guard way of doing business. Lately, this has expanded to law enforcement trying to use the courts as an
ad hoc tool to do end-runs around thorny Constitutional questions. Through bad rulings and bad legislative proposals, the inability of our judicial and legislative leaders to keep in step is increasingly making the existing problems even worse.
Almost exactly two years ago, we wrote an editorial to discuss the flawed thinking in the case of
Aereo , a company in limited markets that captured free over-the-air broadcasts by television stations with arrays of tens of thousands of dime-sized antennae. Each user of the service had a single antenna assigned to them, and the captured signal was then streamed over the Internet to the user (for a monthly fee), or alternatively, can be captured for future viewing like a DVR. Each locale was limited to what it could receive over-the-air -- for instance, New York City users would only receive New York City stations, and not Boston's programming. The key takeaways here were a single antenna for each user, and the limited locality of service.
Broadcasters united to
sue Aereo into oblivion, claiming that the product violated copyrights, as well as flying in the face of what it sees as a required rebroadcast license fee, stipulated in 1992 for its content. Previous court rulings, such as the 1976 overhaul of copyright law, were used as a cudgel in this case by both sides: Aereo claimed that what they were doing with a single antenna for a single user is perfectly legal, just as a user might do for themselves on their own roof. The broadcasters claimed that the arrays of antennae were a technological trick to illicitly sidestep copyright.
In
one Aereo hearing, Supreme Court Justice Sonia Sotomayor wondered what Roku was paying for a licensing fee to cable companies and big media for the content it streams. The answer is nothing; users pay cable companies or rental fees for most of that content. Additionally, Justice Antonin Scalia wasn't aware that HBO wasn't able to be received over-the-air. Old guard, cable. New technology requiring some understanding, Aereo. Ultimately, the broadcasters won by using judicial ignorance of technology to fool the court.
US District Court Judge Denise Cote, overseeing the Apple
ebook price-fixing trial and related lawsuits from 2013, seemed to misunderstand that Amazon holds the monopoly on the market, not Apple -- a misconception that carried through to the Appeals Court. A simple perusal of metrics performed by a wide range of companies clearly show the dominant position that Amazon held, and still retains, in that market -- despite Apple "colluding" with publishers. In this case, the old guard was Amazon, and the newcomer's model and method that needed some understanding was Apple and the publishers' "agency model," which was ruled to be the problem, despite both having been in business far longer than Amazon.
Recently, we have seen a slew of judges
willingly grant orders requested by the US Department of Justice and the Federal Bureau of Investigation using the All Writs Act in attempts to compel Apple -- and eventually, all technology companies -- to compromise the security of their devices, laying open the entire contents of an iPhone or other device for scrutiny, even with little to no evidence that anything of value resides there. In some of these cases, the All Writs Act was invoked without offering Apple the chance to hear the case for it, or respond to it, except to defy the order and demand a re-hearing.
In most such cases thus far, Apple has escaped the blatantly unconstitutional orders. Fortunately, the company has incredibly deep pockets to continue fighting the battle all the way to the Supreme Court. However, that is what gives us pause -- the same court that effectively killed Aereo and refused to consider learning why the DOJ's antitrust case against Apple was built on ostensibly false premises is clearly ill-prepared to adapt its extensive knowledge of the law to deal with the complex questions raised by a worldwide, boundary- and jurisdiction-free network where information is both local and global, stored anywhere and everywhere.
The Aereo case heard before the Supreme Court in 2014, like the recent Congressional hearings which were largely a good-faith effort by the committees to understand the issues, required the arguing experts and attorneys to invoke metaphors, most of them clumsy at best, for what Aereo, or encryption, actually does -- because the judges and congresspeople, most of them technologically (and often literally) senior citizens, do not comprehend the changing market and evolving technology. Lawyers, Representatives, and justices spent time during the various hearings invoking allegories involving valet parking services viewed from 30,000 feet, safe deposit boxes that could be "drilled out" even if the combination was not available, and coat check rooms in an effort to grapple with the understanding they must have in order to rule fairly on the matter, learned though they are in other areas.
People who grew up with computers and technology would say this is not difficult material to grasp, that the various authorities ought to be able to "Google it" for an explanation of what Aereo did, or the "agency model" are all about, or why iPhone encryption is not like a safe you can just blow up if you can't open it any other way to get to the contents you want. Sadly, they -- and, it would seem, many if not most members of law enforcement -- seem either unwilling to do so, or find it advantageous to "play dumb" and not provide the straight answers our leaders seek.
Eventually, this means that judges, Congresspeople, law enforcement, the government, and many others -- including a wide swath of the public -- latch onto a rationale or metaphor that then guides their thinking on what to do about the problem, and makes them ignore the ramifications or implications of real-world implementation of their rulings or proposals, even when those problems stem from areas they know perfectly well, like the Constitution's obstacles to unchecked search and seizure, or the limits of antitrust law, or how existing law handles similar situations.
Senators Diane Feinstein (D-CA) and Richard Burr (R-NC) are both deeply experienced legislators, yet they wrote a legislative proposal so obviously dictated to them by the FBI that it would effectively criminalize all encryption in the United States. Chief Justice Roberts of the Supreme Court recently suggested a rule change that would allow the government to pick which judge it wanted to ask for a warrant to force companies to turn over and decrypt any stored records within the US -- apparently forgetting that companies would just move the data offshore.
A judge in Pennsylvania has indefinitely jailed a former police officer who is suspected of possessing child pornography. The investigation is based on hearsay verbal evidence, poor understanding of the Freenet, and is allegedly stored on encrypted hard drives, but not on any of the other devices the man owns. After one unlock attempt, which may or may not have been a legitimate try, the suspect will remain jailed until he manages to recollect and properly enter the strong, unmemorable password he used to encrypt them. No other charges against the man have been filed, other than contempt of court.
Once again, invoking the All Writs Act, law enforcement has bypassed the Fifth Amendment's injunction against self-incrimination, as well as the First Amendment's prohibition against forced speech or testimony along the way. If technology and Constitutional violations were not involved, this case would be dropped for lack of evidence, as happens routinely. Because of tech's involvement, the judicial system has gone blind and mad, and feels entitled to crush civil liberties to feed an increasing need to possess all information.
It is this sort of thinking that made Congress, following the terrorist attacks of 9/11, to suspend
habeas corpus for 15 years, creat secret courts that could rubber-stamp secret government requests for secret warrants that gagged all the participants, and allowed the government to set up programs of mass surveillance of American citizens and foreign leaders alike, and much more invasive spying we barely know about. This was done out of panic and fear of further terrorism -- but much of these undemocratic laws and secret mandates are still in place now, despite the fact that the entire US justice system was founded on the principle that put the burden of proof on authorities, and presumed innocence until guilt was conclusively proven.
We remain confused as to why the judiciary, above all, can't put a stop to this outright attack on the very tenets of our Constitution and the assault on our civil liberties. While we understand that the esteemed members of the court, and the legislators in Congress, can't be expected to be experts in everything, there is still a fundamental requirement in the need to be fair and just that mandates that authorities understand all aspects of what is being discussed, and the subject being perceived as "complicated" is no excuse to skip that homework.
That includes what is at stake for all parties involved including on-lookers and the public at large. To rule without that understanding undermines the legitimacy of the government, and -- very obviously -- results in bad laws and bad judgements that do damage to both the parties involved and to the foundation of our democratic society.
Pre-research and comprehension by adjutants is especially needed when precedents may be set, like the Cablevision decision from 2008, which allowed digital video recording, as well as the famed
"Betamax case" and other precedents that clarified what constitutes "public performances" over three decades ago. Those precedents prevented all of us, as early adopters and continuing users of equipment that can duplicate media, from going to jail -- even though the Internet wasn't even a twinkle in Vincent Cerf's eye at the time: those strong precedents made the transition pretty smoothly to the digital age, because they were well-researched and well-thought out.
Ironically, many countries not claiming the title "land of the free" have much more sensible fair-use, antitrust, and encryption or privacy laws than the United States -- the alleged vanguard of liberty -- does. Our leaders who lack a fundamental comprehension about the technology at stake, particularly when they can be bamboozled by lawyers' attempts to shoehorn it into completely irrelevant examples in the interest of simplicity, or unworkable or improbable claims made by certain press outlets or other groups with their own agenday, may actually be making the matter less clear -- and damaging the government's ability to render the best verdict or legal result for the people that they claim to serve.
With few exceptions, judges responsible for overseeing court cases who are responsible for ruling on the advancement of technology seem unwilling to take on the mission to understand the technology at the core of the cases they oversee, and this should be grounds for recusal. At the very least, judges and legislators who are not personally tech-savvy should do the research to fully understand what it is they're judging. Courts that lack an understanding of the underlying technologies, the changing market, and the repercussions of their decisions have already crippled our patent system, have lead to highly-questionable product bans, and demonstrably stifled innovation.
The same goes for legislators, government agencies, and law enforcement at all levels. In particular, agencies like the FBI that have come to see the constitutional rights of all US citizens as a convenient haven for criminals, or an obstacle to be worked around need -- at the very least -- a civics refresher. The Constitution and Bill of Rights
deliberately made it difficult to prosecute crimes, and deliberately put the onus on the authorities to prove guilt. This was because it was judged by the Founders that, while some would abuse the system or get away with crimes, this was a small price to pay for the greater good of allowing the vast majority of law-abiding citizens to remain free, and society to flourish.
We'd like to believe that simple judicial and legislative misunderstanding of the issues is the core problem, because that can be fixed with a little education, possibly some time with a more tech-savvy aide or clerk, and some search engine use. Sadly, we're beginning to believe that many in authority just don't bother to catch up on what's changed tech-wise since they were young men and women, and in some cases our leaders are willing to nullify or weaken civil liberties for what they perceive to be short-term gain. As Benjamin Franklin is widely quoted as saying, "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."
Crafting laws that both respect the fundamental American values of privacy and security while bringing law enforcement and crime prevention into the 21st century is not an easy job, nor is it meant to be. There aren't a set of easy answers, and this is the mistake too many participants in this debate keep making. It is likely to be a debate covering a wide range of topics, from encryption to copyright, and it is likely to take a long time. Judges that can be overwhelmed by tech-speak, and legislators eager to destroy our rights to remove "barriers" to a total police state, aren't helping.
It's time for those who fashion themselves as the "grownups" of our society to look around at what's working elsewhere, talk calmly with the various stakeholders, do their homework and yes, make some tough decisions not everyone will like. No side will get everything they want, but history has shown us that when laws and precedents are fundamentally considered to be well-reasoned, just, and fair, they will survive the test of time. Research institutes spend a lot of time and money on teaching machines how to do "deep learning:" it's time we directed more of that effort at humans -- and our ability to govern ourselves -- for the benefit of the many, rather than the few.
-Mike Wuerthele and Charles Martin
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