Technology lawyers in Utah skeptical about Supreme Court’s ability to make informed rule

May 15, 2014

Not so much controversial as derisive would be the word to describe the sentiment around some pretty important cases to be heard by the U.S. Supreme Court around technology. There was Aereo’s antenna use for internet based television, and whether the First Amendment protects speech that “threatens to expose judges to hatred, contempt, disgrace, or ridicule.” Can a website creator or moderator be held liable for statements made by online forum posters is another question wending its way up to the Supreme Court, too, but it’s becoming more and more questionable in the eyes of the public as to whether the Justices are equipped with enough tech savvy to make rulings that make sense, at least according to articles like this one published in the Guardian. Technology lawyers in Utah and across the U.S. representing clients bringing suit against businesses or other individuals are beginning to have some serious doubts about whether the rulings issued by the Supreme Court will be relevant or provide guidelines for their cases.

While the mountain west has typically been a place for large scale technology development, such as aerospace engineering and defense manufacturing, technology lawyers in Utah say that implications from lawsuits around small scale items, like cell phones, can make big waves in the region as well. The U.S. Supreme Court has heard arguments for just such cases in the past week centering on whether cell phones can be legally searched upon arrest without a warrant.

“Most people under 40 probably would agree police should never have the right to rummage through our entire lives without a particular purpose based on probable cause,” Guardian journalist Trevor Timm supposes. But the statements heard from the Justices during the oral arguments stood out on the other side of that line: Justice Roberts insinuated “that police might reasonably suspect a person who carries two cell phones of being a drug dealer.” Well then. The ACLU would probably have a field day with that kind of profiling, especially since judges and attorneys themselves often carry two cell phones: business and personal.

Do statements like these reveal how out of touch the U.S. Supreme Court is with the daily life of the average American? Some technology lawyers in Utah like Micah McBride think so, and wonder whether their clients may be right to worry about whether the rulings coming from the highest court in the nation could be doing them a disservice.

“At least they’re trying,” is one sentiment that’s not circulating around the web in stories and commentary about the court’s ability to rule on technology issues. In the past, they’ve agreed before counsel that “any computer group of people” could write software “sitting around the coffee shop …over the weekend,” and exposed themselves to ridicule when they invented the word “Netflick” in Aereo’s case last week.

Will police be able to compel arrestees to hand over cell phone passwords? Does the NSA have the right to access individuals’ mobile location information? Technology lawyers in Utah like McBride are skeptical that sensible rulings will be handed down, given the fact that the Justices have admitted that they just haven’t “really gotten to email” yet.



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