Tag Archives: Supreme Court

Supreme Court makes some rulings that will have far reaching effects

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This week is the end of the Supreme Court session. Three big rulings have happened in relationship to technology that are vitally important. The first ruling known as Alice which is a key decision in changing how people look at software patents. Second, was a ruling on Aereo, a company that provided a streaming service for over the air way signals. Third, a case about if cops do not need a warrant to search your cell phone.

Alice, has really reinforced the non-obvious clause for patent cases. In fact, it was reinforced in a way that will likely make it difficult for determining non-obviousness. Especially because it strengths the argument that an algorithm is a natural extension of a mathematical truth. Secondly, it requires something novel to be done with a piece of hardware. This means that you can’t simply just take “on a computer” into the patent and have it be valid. I think this will have some really positive implications on the patent trolls out there. Since, it’s required to do something novel, such as using RFID to do the work, you can’t simply say automation through a computer any more. I think this is a great step forward. I’m sure it will cause a lot of heartburn and many more extremely prominent cases to gain some greater level of clarity.

Aereo is officially dead. It’s been decided that Aereo was infringing on copyright in a massive way. They were found to have been completely violating copyright in every sense of the word. This is pretty scary in my opinion. It means that a company that wants to provide an otherwise free service through streaming is violating a copyright holder. This means anyone that acts as a sort of repeater is violating copyright. It certainly means anyone that is transmitting copyrighted material in any medium is violating copyright. This I think is devastating. Furthermore, I don’t believe that this ruling even required specific instances of copyright violation. This puts both Google and Twitch in a precarious position, because they are streaming potentially copyrighted material all the time. It also means that any company that streams other free content is violating copyright. I’m afraid that this is going to scare a lot of other companies out of these spaces. There’s a clear need for this service and the Supreme Court killed that innovation.

Cops need warrants to search your cell phone. This is a huge ruling. This means that if you have a lock on your cell phone that they cannot access the contents without getting a court order. This is pretty big. So I suggest making sure that you lock your phone and think about encrypting it. It truly provides a great deal more protection than in the past. Furthermore, if they violate this and do not get a court order, then the evidence is inadmissible. I am hoping that this lays the legal framework for an overturn of the collection of NSA Metadata. Based on the wording in the ruling, it seems that it would lend a great deal of weight to an argument claiming that the Metadata is part of the phone. If the police cannot access your call history through your phone without a warrant, then logically you’d need a warrant to get the information from a third party – that you HAVE to rely on.

I think that these cases will have a great deal of long term impact on the direction of technology and law in the next few years. I would not be surprised if there were more legal challenges based upon these rulings within the next few months. Expect the EFF to look to expand the logic of the cell phone warrant requirement. Look for companies that are getting hit by patent trolls to push back harder like New Egg has and really beat them down. I’m really concerned about the long term impact of Aereo though. Who knows the implications of that.

Campaign finance laws and its limits

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Today, marked the second time the Supreme Court ruled against setting maximum campaign contributions. First, it was a limit on corporations, now it’s the limit an individual can contribute in a given year. The first ruling is called Citizens United and I was initially very against this ruling because I felt that it would give undo influence to corporations. However, based on the argument Lawrence Lessig provides in “Republic Lost” – that at what point does an arbitrary limit on spending make sense? For example, if I decide to spend a lot of money on ads for a specific candidate through multiple different channels. The problem isn’t that I, as an extremely wealthy person or organization, can spend as much as I want, it’s that there’s an inequality between what You, as a poor pleb, are able to spend. This creates an inequity in the free-ness of speech.

We know that the amount of money a person can raise heavily influences their success rate in the election. This isn’t a surprise as the candidate is able to run more ads and reach a broader audience than the candidate with less money. There’s nothing new to this. Furthermore, the current structure of our media makes it amenable to rich people that spend a lot of money. The limit of $123,000/year/candidate didn’t really impact how much money a wealthy individual actually spent on the elections. Based on this biased news source, the Koch brothers spent over $2 million in more than one state. So, the campaign limits didn’t really work as designed regardless of the limits set. The Supreme Court Ruling basically just aligned the law with reality and didn’t change a whole lot.

Campaign Finance reform is just a band aid over a much greater systemic problem. This is something that Lessig was trying to address in his book, other writers have tried to address through different books, and tech leaders through cruise ships off the coast of San Francisco.

However, I think that this Atlantic image really shows the problem:

The Atlantic: Top .01% income growth

We live in a highly unequal society and the finance rules for campaigns was an attempt to set arbitrary limits to control the influence of the wealthiest Americans. It wasn’t working. The Supreme Court admitted it. Now we need to figure out how to actually fix this extremely difficult problem – that some portions of the population refuse to see as a problem.

I don’t have a solution to this problem. Lessig proposes we use laws to encourage accepting public funds and the creation of that fund through taxes. This would eliminate the influence on donations – which directly or indirectly impact the vote from a person in Congress. Creating something that more effectively through the right incentives and behavior modification is a good start to address the inequality we have in our country.

I think that the growing inequality is hurting our country. When we were much more equal in terms of economic status, we were innovating, for real innovation, not applications. We were developing things to send people to the moon. The greater the separation the top percentages has from the bulk of the population the more risk adverse they’ve become. They aren’t helping push us towards bigger and better things. We need the equality to help drive innovation. That’s the root cause of the problem. Campaign Finance reform was attempting to address a symptom and not even well. Let’s figure out how to address the root cause.

Loss of dignity when arrested?

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Today the US Supreme Court ruled 5-4 that it’s OK for prison officials to decide to strip search someone once arrested. In the case in question a man was wrongfully arrested and in two different prisons within the span of a week was required to strip and display himself to a guard. Kennedy argued that if guards had the ability to strip search anyone pulled over or arrested it is likely that Timmy McVey or one of the 9/11 terrorists would have been stopped ahead of time, as they were arrested days before they committed a crime.

This line of thinking is a very dangerous slippery slope. If we start allowing these unreasonable searches after a traffic violation arrest where is the stopping? At what point will it be allowable to strip search someone after a traffic violation with no arrest? While that’s one direction this could go the other direction has research and very recent photographic evidence.

What I’m talking about is the Stanford Prison Experiment and Abu Gharib. The Stanford Prison experiment is famous for the fact that it finished early due to the brutality of the “prison guards.” In the experiment a random selection of students were split between prisoner and prison guard. Over the course of a few days, the guards and prisoners started to really get into their role to the point that there were serious behavior changes. In fact many of the guards became extremely sadistic to the “prisoners” including beating them and abusing them emotionally. Due to the change in the behavior the experiment ended.

During the Iraq war photo evidence was released that showed systemic abuse that was at least on some level condoned by military and civil authority in the Pentagon. The abuse was used as a way to debase and demoralize the “terrorists,” which is not to say that some of them weren’t actual terrorists but there were innocents. These actions likely started harmlessly enough as strip searches and other activities. However, they escalated into pictures of naked pyramids.

Using these two historic cases as a back drop I think that we can see that there is great potential for abuse and escalation of these sorts of activities. It is well known that torture doesn’t really give us the information we need and it is unlikely that the next McVey or 9/11 terrorist will have something on them at the time of a random street arrest unless they are actively en route to their destination. In the case of the 9/11 terrorist the strip search would have likely found a box cutter and luggage for a trip. It’s unclear how if he would have been arrested it would have turned up enough evidence to put him away for life.

I am extremely disappointed with the SCOTUS with this ruling. While I understand some of the rational for the ruling, it seems heavy handed and likely to lead to abuses rather than the results the Court wishes to find.

Feds need warrant to get phone data

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In a victory for cell phone users everywhere, A court says that the feds need a warrant to request phone data which includes location. We should be celebrating this victory even though it isn’t a total victory. This case will most likely go to the US Supreme Court. The Federal government is not going to give up on this easily. Especially since there have been other rulings that have ruled in favor of warrantless mobile phone tracking. So it’s still unclear what the end result of all of this will be.

Additionally, this may also have implications for some of the other tracking that the government is doing. Apparently, the governments don’t need a warrant to install GPS tracking devices onto cars. Which the police argue saves tax payers money. It raises serious privacy concerns though. What is the limit to the number of people the police can track at a time? Can they simply track anyone closely related to a crime even if they have nothing to do with any sort of crime? With polices officers required to track individuals this puts an obvious limit on the number of people the police and other law enforcement agencies can track. They are limited to the usefulness of the tracking and the number of officers they have available to track. With the GPS tracking they have the ability to simultaneously, continuously track any individual associated with a crime or a suspect of a case. This gives them a huge amount of data on people that may not have done anything illegal and shouldn’t be tracked in the first place.

With this data agencies are able to construct a network of frequent activities for the prime suspect and any other people they consider interesting. If these suspects go to a known drug hide out it can implement additional people in a crime that wouldn’t have been obvious without the tracking. It could allow for an increased ability to  crack down on crime. However, it can also send up a great deal of false positives and implement innocents.

Should we be concerned with this type of tracking? Definitely. The purpose of requiring a warrant, in a historical context, is to prevent the government for arbitrarily searching the house of a person. I find the ability to be remotely tracked terrifying. Just because I don’t have any thing to worry about doesn’t mean I’d want the government to have the ability to track me on a whim. I feel it’s important for there to be a check on the law enforcement. I think it’s clear from the UC Davis pepper spray incident that there’s a sense of unlimited power within many of our police forces. Warrantless tracking through cell phones or vehicles are incredibly similar.

The job of the court and our constitution is to protect the people from the excesses of the government through the actions of law enforcement. We need to work with our legislation to push for laws to address these issues if the courts don’t make the action in the manner to protect the fourth amendment and our privacy.