A pair of important Supreme Court decisions came down today—one disappointing and one critically important to anyone who uses mobile devices.

The disappointing one is a 6-3 decision killing Aereo. The service that used dedicated individual miniature antennas to stream broadcast TV service to people’s computers over the Internet has been ruled to appear too much like a cable company, even as it scrupulously followed the letter of existing case law (while nonetheless skirting its spirit). Aereo could try to license content from the networks going forward, but would have to pass the costs on to consumers—and as Gizmodo points out, at a certain point, you might as well just pay for cable TV service. This is going to make it a lot harder down the road for other companies to innovate disruptively around television.

Still, in retrospect, it’s probably not too much of a surprise. Aereo was specifically designed in a tortuous way to exploit a legal loophole that the Cablevision DVR case opened up. When the sole difference between a service being legal or illegal is using one versus multiple antennas, that’s kind of a silly distinction. The Supreme Court doesn’t tend to like rules lawyers.

The important ruling is that the Court unanimously decided that searching a cell phone as part of an arrest requires a warrant. Recognizing that cell phones can now perform the function of and contain equivalent information to so many other devices (“cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers”), they note that, as “a digital record of almost every aspect of their lives,” people’s cell phones are definitely more than just a personal item someone might carry in his pocket.

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

That’s as critical a decision as the Aereo one is disappointing. It’s good to know that we have more legal protection for our mobile digital lives that we carry in our pocket. Still, it’s sad that Aereo’s lost. I had hoped to sign up when it came to Indianapolis—I don’t have a TV myself, and my only option for catching shows that don’t come to Hulu or some other official streaming site is not exactly legal. Oh well; the television networks have made it clear what they’d rather have me do.


  1. I didn’t see “computers” in the quoted (from the decision?) list. If I am carrying a laptop or tablet when arrested, is that searchable sans warrant or not? We often read that when a person has been arrested at their residence that computers and other devices are collected.
    So, now, if a computing device is collected in the process of arresting a person, a warrant must be obtained prior to searching that device, right? Then, there are all of those computers in newer automobiles and who knows where else?

  2. Aero’s downfall was acting too much like a broadcaster even if its technical implementation was carefully skirting the law. Look for Aero or some Aero clone to just directly rent micro antennas to consumers and stream the feed. This makes the end user responsible for all the Cable Company type services like DRV and channel selection etc.

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