Aereo and Cellphone Searches: High Court Goes in Opposite Directions on Two Key Cases

Rob Pegoraro
Tech Columnist
July 1, 2014

Aereo went off the air Saturday, courtesy of a ruling from the Supreme Court on Wednesday that found that this innovative TV-antenna-to-Web service infringed networks’ copyright. Short version of the 6-3 decision: Never mind how Aereo’s technology actually works. Its antenna-to-Web service does the same basic job as regular cable, and cable companies pay for content.

On the same day the court handed Aereo its death sentence, it issued a 9-0 ruling that police can’t search a phone’s contents without a warrant. Their reasoning: You should mind how the technology works. A phone’s call log might do the same basic job as a printed billing statement, but it’s technological and therefore different.

It’s not the first time our legal system has found itself confused by digital technology. But you rarely see the nation’s highest court go in such opposite directions on the same day.

Aereo scenario
Justice Stephen Breyer’s ABC v. Aereo opinion betrays no confusion about Aereo’s workings. Its second page concisely explains how the New York startup deployed a vast array of tiny TV antennas, each of which could be assigned to an individual subscriber and its signal then streamed over the Internet to an Aereo app. 

Why one antenna per subscriber, instead of one giant rig for everyone? Aereo said that made its service the functional equivalent of using your own TV antenna with a seriously long cable connecting it to your screen. In 1996, Congress believed that having control of your own TV antenna was important enough that it tossed local prohibitions against mounting them on rooftops or balconies.

The court didn’t buy that concept, though. Even though video bits don’t zip to an Aereo app until you choose what to watch, the ruling found that Aereo still acted like a cable company that always has TV coursing down the pipe.

Nor did the opinion smile on Aereo’s argument that its personalized antenna-to-screen path made its video a private performance, not a public one. That’s key in copyright law: If you play a video on your laptop for yourself or friends, it’s private playback and you owe no royalties. Post it online for strangers to view, and you must sign a license first.

The opinion acknowledged that logic but then breezily kicked it to the curb: “Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens.”

The law behind those regulatory objectives dates to 1976. That’s when Congress revised the Copyright Act to make cable operators pay to retransmit local stations. Before then, some of the cable companies Aereo competed with for the delivery of network content got to use their big antennas to get and retransmit local TV for free. That law, of course, said nothing about individual video streaming.

Aereo engineered its one-antenna-per-viewer system to plug into that loophole. It then went to the trouble of recreating the geographic limits of over-the-air reception by blocking subscribers from watching while traveling. For subscribers, it was very much like sticking a pair of rabbit ears on a TV … connected to an iPad.

In a dissenting opinion, Justice Antonin Scalia criticized the majority’s logic as a “guilt-by-resemblance regime” contrived out of discomfort at seeing Aereo get away with acting like cable without paying the same retransmission fees. 

“It is not the role of this Court to identify and plug loopholes,” he wrote. “It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.”

Phoning it in
That brings us to the court’s other tech decision from last week, the 9-0 opinion by Chief Justice John Roberts in Riley v. California. Here, the government was arguing that since the cops can search you after an arrest, without a warrant, for concealed weapons or evidence about to be destroyed, they can do the same to the contents of your phone. 

The items in your pockets were “materially indistinguishable,” its logic went, so one standard should apply to the digital and analog worlds. Sound familiar?

Nonsense, Roberts wrote: “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” The opinion called out the enormous difference in data available in a wallet or a shirt pocket versus on a mobile device, even a crummy flip phone.

“The fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery,” Roberts wrote. “The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years.”

So here these technological differences matter, especially the behind-the-scenes way they let your phone display cloud-served data it doesn’t actually store.

Now what?
Unsurprisingly, as Aereo was taking itself offline to regroup after the ruling, emboldened TV network lawyers were extending on their victory. On Friday, Fox suggested that judges hearing its suit against Dish Network’s Dish Anywhere streaming service apply the Aereo ruling logic against that feature.

What other services could be at risk from a vague looks-like-cable standard? The Slingbox and SlingPlayer, whose technology exists in the Dish system, too, looks like an obvious target. 

But so could anything that uses personalized streaming to match features of a more traditional broadcast system. That neat “Group Play” shared-music-playback feature in some Samsung phones, for example, just might sound like a radio clone when heard through the court’s headphones.

Don’t worry, Breyer’s opinion concludes; you can invoke a “fair use” defense if you get sued. As proof, he cites the 1984 Betamax case — as in the 5-4 ruling legalizing the VCR that came frighteningly close to flipping the other way. But that “go to court and take your chances” stance doesn’t sound like much of a pep talk, especially for startups that might decide to stay out of the personal content streaming business rather than gambling on a potentially company-killing legal battle.

Email Rob at; follow him on Twitter at @robpegoraro.