The U.S. Supreme Court begins a new term Monday with a slew of technology and civil rights issues queued on its docket, some of which could have far-reaching implications for the Freedom of Information Act, copyright, warrantless searches of private residences, the "state secrets" privilege and freedom of expression.
The cases we're tracking involve regulation of videogame sales, the limits of the Copyright Act's first-sale doctrine and the power of the government to collect sensitive data on employees. Another case asks whether convicted defendants have a right to use modern DNA testing to prove their innocence.
Ruling on these issues is a rapidly changing high court, with four new appointees in five years, creating the youngest court in the modern, digital age.
"You're getting a new generation of justices. You've got justices who text on their phones, who do e-mail, who actually use a computer," says Thomas Goldstein, the SCOTUSblog founder who has argued nearly two dozen cases before the Supreme Court. "That can have real consequences. It makes a difference."
The Supreme Court hears about 60 to 75 cases annually. About four dozen cases have been chosen so far, and a number of crucial cases from the appellate courts are vying to be added.
One Fourth Amendment case not added to the docket, but which might reach the court this term, concerns the so-called "plain view" search doctrine, which lets police seize evidence not named in a warrant. The case, which the Obama administration is mulling whether to appeal to the Supreme Court, asks the question: When the authorities seize a hard drive with a warrant, can they use in court other discovered evidence not sought in the warrant?
And the justices might take their first individual file sharing case, as part of the Recording Industry Association of America's litigation campaign that has ensnared more than 20,000 file sharers. The high court has shown an interest in the case of Whitney Harper, an admitted file sharer who argues she should not be held liable for infringement because she did not know she was committing copyright infringement as a teen.
Here is a summary of some of the upcoming cases that have been granted a hearing by the Supreme Court:
Costco Wholesale v. Omega, 08-1423
Oral argument Nov. 8
__Question presented: __Does the first-sale doctrine apply to imported goods manufactured abroad?
Costco was selling the Omega Seamaster watch for about $1,300, well below the $2,000 recommended U.S. price. Omega, of Switzerland, had copyright the watch design in the United States by imprinting the company's emblem on the underside of the timepiece. Omega sued Costco for copyright infringement, because it was obtaining the watches from unauthorized dealers in Europe, which sold them far cheaper than U.S.-based Omega distributors.
But under the U.S. Copyright Act, the first-sale doctrine generally allows the purchaser of a copyright work to resell the work without the copyright holder's permission. That's why we have used book stores, record stores, GameStop and even eBay.
That didn't stop the 9th U.S. Circuit Court of Appeals from siding with Omega. The San Francisco-based appeals court ruled that the first-sale doctrine did not apply to Omega watches because they were made overseas. That meant Costco was liable for copyright infringement for the unauthorized resale of Omega's watches because Costco purchased them via unauthorized channels.
Costco appealed to the Supreme Court, pointing out that the ruling effectively urges U.S. manufacturers to flee the United States to acquire complete control over distribution of their goods in the American market. The Obama administration has taken Omega's side, writing that the "Copyright Act does not apply outside the United States." If it did, the administration told the justices, that would be an "extraterritorial application of U.S. regulatory statutes."
Say bye bye to eBay if Omega wins.
Schwarzenegger v. Entertainment Merchants Association, 08-1448
Oral argument Nov. 2
__Question presented: __May the states ban the sale or rental of violent video games to minors?
The case concerns a 2005 California ban adopted by state lawmakers. The 9th U.S. Circuit Court of Appeals in 2008 overturned the law, saying there's no evidence that violent videogames harm youngsters.
Six other states and several local governments have adopted similar videogame laws -- which provide for a $1,000 fine for sellers -- despite the game industry's voluntary videogame-rating labels. The Supreme Court in 1968 allowed the states to adopt laws that keep "obscene" sexual content away from kids, but not violent content.
If the law is upheld, it could be a harbinger of more speech regulation to come. Even the Motion Picture Association of America and the Electronic Frontier Foundation, virtually enemies on every front, agree on that point, and oppose the California law.
"Videogames are fully protected speech, and both the 'violence' and 'interactivity' feared by California's law are expressive aspects of books, plays, and movies -- not just videogames," EFF senior staff attorney Lee Tien says. "The government can't regulate speech content, even to protect children, if there are reasonably effective private rating systems and parental-control tools that don't interfere with our First Amendment rights."
On the other side, the Eagle Forum Education & Legal Defense Fund, which describes itself as a "pro-family group," urged the justices to uphold the law.
The statute, the group told the justices, is "constitutional because it facilitates parental control over the upbringing of their children. Finally, children playing videogames are the equivalent of a 'captive audience,' and the statute is constitutional by protecting this audience against image abuse."
Skinner v. Switzer, 09000
Oral argument Oct. 13
__Question presented: __Do convicts have a right to post-conviction DNA testing?
The Supreme Court answered no to that question a year ago, but a Texas inmate wants to utilize civil rights law to access crime-scene DNA.
The case concerns condemned inmate, Henry Skinner, who was convicted of the 1995 murder of his girlfriend and her two sons. Skinner claims breaches of his Fourth Amendment due process right and Eighth Amendment right to be free from cruel and unusual punishment, because he hasn't been allowed a test of the DNA found at the crime scene.
The Texas state and federal courts -- hearing Skinner's habeas corpus pleas -- refused to allow post-conviction testing of biological evidence, including blood, hair, fingernail clippings and vaginal swabs. The courts held that, under Texas law, a convict must prove, by a preponderance of the evidence, that he or she would not have been prosecuted or convicted had DNA testing been performed. To get DNA testing, a Texas inmate must also demonstrate that his failure to seek such testing at trial was not a strategic decision.
With nowhere else to turn, Skinner sued local prosecutors under a federal civil rights statute, and the Supreme Court halted Skinner's execution to determine whether he could gain DNA access via that legal avenue. The states claim that such legal jockeying is a backdoor attempt to rewrite both state and federal death-penalty law.
At least 22 states told the justices that granting Skinner DNA testing through a civil rights suit would undermine their individual statutes, which spell out when an inmate is entitled to it.
"To allow this type of procedural legerdemain would both diminish the sovereign interests of the states and at the same time impose a significant burden on the states' limited law enforcement resources," attorneys general from the 22 states wrote.
National Aeronautics and Space Administration v. Nelson, 09-530
Oral argument Oct. 5
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__Question presented: __How much personal information may the federal bureaucracy dig up about its workers? *
The justices are weighing a lower-court decision surrounding the concept of so-called "informational privacy." The 9th U.S. Circuit Court of Appeals struck down intrusive background checks last year on nearly three dozen NASA contractors as being an invasive, unconstitutional "broad inquisition."
The checks sought information from any and all sources about the contractors' sex lives, finances and any drug use. The contractors being investigated were not privy to classified information.
The Obama administration, in seeking review of the lower-court decision, told the justices the checks were the same type conducted on all federal government workers -– now numbering about 14 million. The background checks are part of a 2004 security directive from President George W. Bush.
"The ramifications of the decision below are potentially dramatic," the Obama administration told the justices in its petition to the court.
The NASA contractors worked at the Jet Propulsion Laboratory in Pasadena, California, and generally engages in the scientific study of the Earth and solar system.
"I'm afraid that based on the law and precedent, it's going to be a tough road for that case to be affirmed. I think the government is going to win on that," says Daniel Solove, an information-privacy expert and professor at George Washington University.
The administration said collecting the background information, as opposed to disseminating it, was constitutionally acceptable.
Federal Communications Commission v. AT&T, 09-1279
Oral argument not scheduled
__Question presented: __The Freedom of Information Act exempts the government from disclosing law enforcement records if they "constitute an unwarranted invasion of personal privacy." Does that personal exemption apply to a corporation, in this case AT&T?
The 3rd U.S. Circuit Court of Appeals thought so.
The case concerns trade group CompTel's FOIA request in 2005 for records AT&T forwarded to the FCC's enforcement bureau concerning AT&T's admitted overpricing of telecom equipment and services to Connecticut schools under the graft-ridden E-Rate program.
The FCC, against AT&T's objections, said the records could be released because the company has no "personal privacy." AT&T appealed to the circuit court, which said corporations were, indeed, "persons" subject to protection from disclosure.
"Corporations, like human beings, face public embarrassment, harassment and stigma," the appeals court ruled last year. The FCC appealed.
The Obama administration is urging the Supreme Court to reject AT&T's claim of personhood, as are several advocacy groups, including Public Citizen, EFF, National Security Archive and, among others, Reporters Committee for Freedom of the Press.
In short, the groups concluded that if the decision stands, corporations could escape public oversight.
"The decision below warps the concept of 'personal privacy' in FOIA," the groups wrote.
Boeing Company v. United States and General Dynamics v. United States, 09-1298
Oral argument not scheduled
__Question presented: __Can the government claim a party owes it money while invoking the "state secrets" privilege to prevent a defense to that claim?
The Court of Appeals for the District of Columbia Circuit ruled it could.
The dispute concerns the government's assertion of the state-secrets privilege, a privilege that usually generates headlines as it's often used in lawsuits surrounding terrorism and national security cases. The privilege, which has been used repeatedly by the Bush and Obama administrations, often requires the courts to toss a lawsuit once the government makes the assertion that the case would endanger national security. It was first recognized by the Supreme Court in a McCarthy-era lawsuit.
Before the justices is an appeal by the two defense contractors. The government wants them to repay as much as $3 billion for the scuttled A-12 Avenger stealth fighter program. The government wants the money back after Defense Secretary Dick Cheney claimed in 1991 that the companies were in default on a 1988 contract to build eight of the planes for $4.4 billion.
After seemingly endless legal jockeying, a federal appeals court said the contractors, in a suit brought by them, were not entitled to make a defense that the government failed to provide stealth technology that they claimed was essential to the project. The contractors were liable and owed the government the money. The government maintains disclosing evidence that would support or refute the contractors' allegations would threaten national security.
Kentucky v. King, 09-1272
Oral argument not scheduled
__Question presented: __Did Kentucky police, when first knocking on a suspected drug dealer's door and then kicking it down, create their own emergency to bypass the need for a warrant to enter a private residence?
The Kentucky Supreme Court answered in the affirmative in a legal flap to which the U.S. Supreme Court has given little guidance -- resulting in conflicting precedents on the topic across the nation.
The appeal concerns a 2005 crack cocaine sting operation in Lexington, in which an informant purchased the illicit substance from a suspect outside an apartment complex. The suspect then walked through a breezeway of the complex, and officers on foot lost track of him.
The police smelled marijuana outside an apartment, which was not the apartment the suspect had entered. They knocked and yelled "police," heard some noise inside and kicked down the door to let themselves in on a belief that drug evidence was possibly being destroyed. The suspect they were looking for was not there, but three others were arrested for marijuana and cocaine possession.
One defendant, Hollis King, challenged his arrest, claiming it was based on an illegal entry. He pleaded guilty on the condition of an appeal and was sentenced to 10 years. A local judge said the authorities had the right to enter his apartment based on the smell of marijuana and the rumbling sounds inside the apartment. The Kentucky Supreme Court reversed, saying the entry was a Fourth Amendment breach.
The U.S. Supreme Court in 1980 said the police may not enter a private residence without a warrant unless there is probable cause and so-called "exigent" circumstances. The authorities claimed the exigent circumstance was a belief that drug evidence was being destroyed.
The smell of marijuana created the probable cause. But was there an emergency, an exigent situation, where there was not enough time to obtain a court warrant? The Kentucky Supreme Court agreed the potential destruction of evidence was an exigent circumstance, but ruled in January that it was unlawfully created by the police.
"Where police are observing a suspect from a lawful vantage point, and the suspect sees police, then the exigency is generally not police-created. But where police unnecessarily announce their presence, and this creates the fear that evidence will be destroyed, police have created their own exigency, and cannot rely on the fear of evidence being destroyed as a justification for a warrantless entry," the Kentucky high court ruled.
Sixteen states have weighed in, urging the justices to set a nationwide standard on the issue.
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Photos: Supreme Court building shot by Jeff Kubina/Flickr, marijuana shot by themadpothead/Flickr
See Also:
- Supreme Court Gets RIAA Copyright Case
- Supreme Court Takes On Videogame Sales to Kids
- Supreme Court Takes 'Informational Privacy' Case
- Supreme Court Balks at Redrawing Patent Rules
- Supreme Court Rejects Case of Tortured Canadian
- High Court Bars Cameras in Gay Marriage Trial
- Supreme Court: Officer's Texting Not Private
