Supreme Court Justice Antonin Scalia passed away yesterday, leaving behind a controversial—at best—legacy. But the one area where he was shockingly forward-looking was in technology.
Scalia’s opinions were backwards in almost every possible arena. His views on gays, women, minorities, religion, health care, abortion, business, campaign finance, the death penalty, and the environment run counter to progress in all arenas. And when he wasn’t winning, he was offensive about those opinions. Even when he did win, he had a tendency to put people down during oral arguments.
He was also a man of prodigious legal knowledge and was a phenomenal writer. Scalia’s dissents almost always produced a quote that was instantly recognizable as his voice. Often, they were infuriating.
For all the harm he did sitting on the Court for nearly thirty years, Scalia was surprisingly adept at understanding technology. Justice Alito may have once joked, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” but that same case is the one where Scalia declared that video games get First Amendment free speech protection.
In that case, Brown v. Entertainment Merchants Association, Scalia voted to extend the First Amendment to video games, a technology he could never have foreseen when he was growing up. Scalia wrote the majority opinion in that case, setting this as precedent:
Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium.
Scalia had an ability to recognize when the Constitution continued to apply to new technology. He was very pro-privacy, so long as the invasion was to your home. Scalia wrote the opinion in Florida v. Jardines, a case which declared that a drug-sniffing dog was too advanced a technology to be used on someone’s porch without a warrant. He also authored the decision in Kyllo v. United States, that use of thermal imaging was a search that required a warrant. In that opinion, he was very aware of changing technology’s affect:
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.
If technology breached the integrity of your house walls, Scalia was not going to let anyone use it without a warrant. We can’t know for sure, but the very narrow decision in Florida v Riley, allowing surveillance from a helicopter, seems very Scalia. Law enforcement didn’t need a warrant because it was in public airspace and the helicopter didn’t interfere with the use of the home. If the regular public couldn’t have gone there, neither could the police. If drone surveillance had ended up at the Supreme Court before his death, you could bet Scalia would have been asking all of these questions.
Where Scalia shines with technology is in a pair of cases: American Broadcasting Companies, Inc. v. Aereo, Inc. and National Cable & Telecommunications Ass’n v. Brand X Internet Services. In each, he seemed to understand technology better than his peers.
Aereo questioned whether a cloud-based antenna and DVR system violated copyright law by “retransmitting” a public performance of network TV in people’s homes. Even though Scalia took some flak for not knowing that you have to pay for HBO during oral arguments, he also wrote a dissent where he argued hard against the majority declaring Aereo basically a “cable company” that needed to pay for its programming:
Aereo does not “perform” at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.
Instead, Scalia said that it was not the service, it was the user:
Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna that — like a library card — can be used to obtain whatever broadcasts are freely available. Some of those broadcasts are copyrighted; others are in the public domain. The key point is that subscribers call all the shots: Aereo’s automated system does not relay any program, copyrighted or not, until a subscriber selects the program and tells Aereo to relay it. Aereo’s operation of that system is a volitional act and a but-for cause of the resulting performances, but, as in the case of the copy shop, that degree of involvement is not enough for direct liability.
Brand X was a 2005 case that challenged the idea that cable internet providers were an “information service” rather than a “telecommunications service.” The FCC had made that categorization under pressure from cable companies which really, really didn’t want to be subject to the more stringent rules governing telecoms. Under the Telecommunications Act of 1996, “telecommunications services” have to give access to their networks to the public. Which ensures competitive prices. The FCC calling internet service providers an “information service” allowed telephone companies to give pricing advantages to their own subsidiaries and require customers of third party ISPs purchase landline services to provide DSL. Cable companies offered no access at all to their data lines.
Scalia was having none of this. In his dissent in Brand X he said:
The first sentence of the FCC ruling under review reads as follows: “Cable modem service provides high-speed access to the Internet, as well as many applications or functions that can be used with that access, over cable system facilities.” Does this mean that cable companies “offer” high-speed access to the Internet? Surprisingly not, if the Commission and the Court are to be believed.
He got even more scathing, in a comparison that should have persuaded everyone of the absurdity going on here:
If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” would prevent them from answering: “No, we do not offer delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually `offering’ you delivery, because the delivery that we provide to our end users is `part and parcel’ of our pizzeria-pizza-at-home service and is `integral to its other capabilities.’” Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice.
Which adds up to Scalia being on the side of net neutrality.
None of this is to say that Scalia was always great when deciding cases about technology, but it seems to be the one area where he was surprisingly forward-looking. Which is shocking for a man whose views so often seemed backwards and whose legal arguments were so rooted in the past.
Additional reporting by James Whitlock and Andrew Liptak
Contact the author at firstname.lastname@example.org.