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The tech industry was front and center on the Supreme Court’s docket last year, giving rise to landmark rulings on cellphone privacy, digital television and new measures to reform America’s dysfunctional patent system.
This week, the Supreme Court begins a new term and though tech-related issues are not as prominent as last year (gay marriage and religious freedom are getting top billing this time around), cases involving [company]Facebook[/company] and [company]Amazon[/company] are attracting attention.
Here are three tech-related Supreme Court cases to watch in the coming two months (more could be added by the end of the year), plus a quick look at five other cases that could bubble up to the top court in the the next year or two.
The Amazon workers’ case
Integrity Staffing v. Busk, October 8
Should employees be paid when they have to stand in 25-minute lines for security checks at the end of a shift? A group of Amazon warehouse workers from Nevada are at the center of this labor-rights case, which turns on what counts as a “principal job activity” for which an employee must be paid under federal law. The workers say that the security checks clearly are a job activity since their employer orders them to undergo them; the staffing company, which hired the workers on behalf of Amazon, disagrees.
The outcome of the case will immediately affect not just Amazon, but Apple too – the iPhone maker is currently embroiled in a class-action lawsuit over searches of Apple Store workers, and the outcome of that case will likely turn on the Supreme Court ruling. More broadly, the case carries symbolic meaning at a time when the titans of the tech industry are under scrutiny for treatment of employees. (Last week, Google agreed to make its security guards full time employees, while Facebook faces a union drive by those who drive its special shuttles.)
The Patent Court case
Teva Pharmaceuticals v Sandoz, October 15
[company]Google[/company], [company]Facebook[/company], [company]RedHat[/company], [company]Twitter[/company] and other big tech names have filed “friend-of-the-court” briefs in this patent dispute between two pharmaceutical companies. The highly technical case turns on which judges get the final say in so-called “claim construction” (a fancy way of saying “how to read the patent”).
One side says that the lower court judges should get some deference in defining what the patent says. The other side — supported by the tech companies — say this is entirely a question of law that the country’s patent appeals court, the Federal Circuit, should decide.
The reason this is important is because giving deference to lower court judge increases the risk of “forum shopping,” in which patent plaintiffs choose notorious venues like East Texas to bring their claims. While the Federal Circuit has a terrible reputation of its own, the tech companies clearly prefer it to some local jurisdictions. More broadly, the case may reflect the Supreme Court’s ongoing attempt to repair the troubled U.S. patent system after Senate Democrats killed an important patent reform bill in April.
The Facebook threats case
Elonis v United States, December 1
This case is attracting attention because of its colorful facts: a man adopted a rap persona and engaged in violent rants, many of them in the form of Eminem lyrics, directed at his wife on Facebook. He faces a four-year prison term for reciting threats.
This case is less about Facebook than it is about a fine point of criminal law (whether a threat must be subjective or objective), but it has broader implications at a time when so much of our communication occurs on line.
As Adam Liptak noted, “The question in the case is whether Mr. Elonis’s intent mattered, and the court’s answer will affect many prosecutions for threats made using social media including Facebook, Twitter and YouTube.”
5 other tech cases to watch
Courts move as slowly as the tech industry moves quickly, so there’s invariably a long delay before the most important tech issues land at the Supreme Court. It’s a mug’s game predicting which cases will actually come before the Supremes, but here are five issues that — for one reason or another — are crying out for legal help from on high.
Stingray Cell Phone trackers
“Stingrays” are devices that trick cell phones into giving up information such as call records and locations by pretending to be cell phone towers. Private companies are selling them to law enforcement and there is glaring evidence of courts allowing police to use Stingrays without a warrant; the FCC says it will act, but the courts will likely need to step in sooner than later.
The Supreme court decided the closely-watched Aereo case, which turned on how private copying rights apply in the cloud, on the last week of its term in June — but as the dissent noted, the court offered: “an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.” That confusion is here already as Comcast is now selling a cloud DVR that is “going mainstream before anyone knows if it’s legal,” according to Quartz.
Cities’ right to build broadband
This is one of our favorites at Gigaom: AT&T and other telecom giants are paying big money to thwart municipal broadband projects in places like Chattanooga. FCC Chairman Tom Wheeler has warned the companies he will use federal power to “pre-empt” them — look out, if the companies sue (and they probably will), this has SCOTUS written all over it.
Copyright extension though state law
The entertainment industry has repeatedly found new ways to expand the terms and protection of copyright. Record labels just found yet another way to do so, persuading a California judge last month to apply a whole range of state-based laws to sound recordings. Splits between New York and California courts, and the money at stake, could soon require a resolution from on high.
The FAA and the law of drones
The drone industry is taking off in other countries even as Google and Amazon struggle with FAA red tape that forbids commercial drone use. A court challenge to the FAA’s rule-making power has been successful so far, and the legal issues involved — plus Justice Sonia Sotomayor’s apparent interest in the topic — means drone laws could be before SCOTUS by next year.