Posner on SCOTUS and Privacy at Supreme Court Breakfast Table
The question for today is how well the Supreme Court is grappling with new technology. In Riley v. California, the court decided that the police cannot read through the cellphone taken from someone they arrest without first obtaining a warrant. In ABC v. Aereo, the court ruled that a newfangled system for transmitting television programs over the Internet violated the copyrights of the broadcasters who own those programs.
Last year, Justice Antonin Scalia famously wrote a separate opinion in a case involving the patentability of a genetic test in which he said of the majority’s discussion of the “fine details of molecular biology” that “I am unable to affirm those details on my own knowledge or even my own belief.” Scalia did not explain how he could agree with the majority’s holding without understanding the facts of the case, and one got the distinct impression that he did not think the majority understood the facts of the case either. A molecular biologist I know concurs.
Fortunately, Riley involves a piece of technology that we all understand. Riley, the defendant, possessed a smartphone, which the court helpfully defines as “a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity.” Another defendant in the case owned a flip ph