BY SELINA MACLAREN
This week was a huge one for technology at the Supreme Court. The Court issued three opinions — Riley v. California, United States v. Wurie, and American Broadcasting Companies, Inc. v. Aereo — that taken together served as an endorsement of cell phone privacy and a condemnation of the online retransmission of TV shows to paid subscribers.
The months leading up to the decisions had been a rough ride for the justices. Following oral arguments for these cases, they were called “black-robed techno-fogeys.” They were ranked based on technological incompetence. Their discussions of “the cloud” became the soundtrack for a comical YouTube video, and the blogosphere cringed when Chief Justice John Roberts learned, for the first time, that some people carry more than one cell phone. So, was all that nervous taunting warranted?
Well, yes, but not for the reasons we thought.
The problem isn’t that the justices are old fogeys. The problem is that the justices were groomed in a field that emphasizes reasoning by analogy. And analogies were critical in these cases: The Aereo decision, for example, hinged on whether the company was more like an equipment provider or a cable company; the Riley and Wurie decisions addressed whether cell phones are sufficiently analogous to wallets. But emerging technology is, by definition, about breaking away from history. Perhaps reason by analogy hamstrings innovation, or perhaps it promotes impartial decision-making. In any event, it helps explain why the justices sometimes say such silly things.
Years of tortured analogies at oral arguments culminated most recently with this week’s cases, but a look back at decisions from years past reveals an abaundance of strained analogizing. In past arguments, computers were analogized to typewriters, phone books and calculators. Video games were compared to films, comic books and Grimm’s fairy tales. Text messages were analogized to letters to the editor. A risk-hedging method was compared to horse-training and the alphabet. EBay was likened to a Ferris wheel, and also to the process of introducing a baker to a grocer. The list goes on.