Technology in the Courts

Introduction

Five years ago, in the year 2007, the Ninth Circuit Court of Appeals presided over a complex copyright dispute that would ultimately set new precedent for the treatment of Internet search engines by courts across the country. The facts of the case were rife with esoteric technological principles that, no matter how inaccessible to the average person, formed a bedrock of issues upon which the entire outcome of the case relied. With this reality in mind, the court began its opinion: “Google’s computers, along with millions of others, are connected to networks known collectively as the ‘Internet.’” The court clarified further: “The Internet,” it wrote, quoting a 1995 California district court opinion, “is a world-wide network of networks . . .”

Courts handle technological issues with a broad panoply of approaches, but never has it been more important that judges have a strong grasp on the computer science and communication technologies that now occupy permanent space in the country’s courtrooms. We are beyond an era of rudimentary background primers once appropriate in the 1990s, and entering a new age wherein some demonstration of a deeper understanding will be paramount. (To be fair, the Ninth Circuit moved passed its clumsy opening to somewhat more elegant deconstruction of the relevant technology, but the opening failure in eloquence is no less alarming.)

Nowhere has this been more consistently demonstrated than in the myriad court and regulatory battles surrounding today’s tech giants and the computer and Internet technologies behind their immensely popular and influential products. If there are indeed two types of people, those who know how to change the behavior of computers, and those whose behavior computers change, then it would seem important not only that citizens and consumers understand the technologies that they use and the consequences of their use, but also that judges across the country, tasked with preserving and protecting the Constitution, do as well.

An Example: Search Engines and the First Amendment

Disagreement over issues of technological understanding can influence interpretation of constitutional principles. In 2003, in a case called Search King, Inc. v. Google Technology, Inc., Google was sued for actively demoting a website’s Page Rank. Google quickly responded that its search results constituted editorial opinions, and were afforded full free speech protection under the First Amendment. Search King, on the other hand, argued that the Page Rank method is a patented, mechanical system incapable of rendering subjective opinions. Since ideas are not patentable, and since patented processes must be replicable, the Page Rank system must be entirely objective, it argued.

The court sided with Google, granting the company’s motion to dismiss the claims against it. While the facts of this particular case did necessitate such an outcome (Google committed no legal wrong by manually adjusting Search King’s rank), the court took its analysis one step further, holding that “Google’s Page Ranks are entitled to ‘full constitutional protection.’” The court probably should have avoided the First Amendment analysis altogether under the canon of constitutional avoidance, but the decision it did make on the issue raises interesting questions about understanding the technology of internet search for the purposes of First Amendment analysis.

Ultimately the Search King case is not all that important: the opinion was an unpublished opinion by a judge who perhaps went too far. But Google, for its part, has reiterated its stance on the First Amendment issue as it faces a new era of potential regulations and interventions. In anticipation of the debate, the firm commissioned legal scholar Eugene Volokh to compose a White Paper arguing for free speech protection of search rankings. Volokh relied in part on the Search King decision, characterizing search rankings as editorial judgments similar to those reflected on the front page of a newspaper (think Trump v. Chicago Tribune).

But some scholars find this approach inappropriate. While Google’s users enjoy First Amendment protection for content found by search, and while Google enjoys protection for the original content that it creates, its algorithmic search rankings (that is, the specific order in which results appear) are not protectable speech, they say. One such approach argues that, while a search ranking may seem like an opinion, it is no more protectable than the opinion a car alarm expresses when it senses danger and elicits the corresponding output of loud noises. While a newspaper’s mission is to communicate ideas, a search engine’s purpose is to locate information in a database. In this sense, the search engine is more like a telephone switch connecting users than a newspaper—it does not produce speech so much as functional communication. Another approach suggests that Google search is best thought of as an index of the web, most similar to card catalog schemes found in many libraries, which use the Dewey Decimal System. (Courts have in fact relied on the card catalog analogy in the past to understand meta tags).

Conclusion

Whichever approach is ultimately correct (the newspaper analogy, the switchboard analogy, or the index analogy), one thing is certain: courts will have to get comfortable with finding the right analogies to understand new technologies so that they may be properly understood when applying laws and constitutional principles that didn’t necessarily contemplate them. Inevitably tech firms will find themselves in America’s courtrooms and occasionally constitutional issues will arise. As we rely on computers to make more and more decisions for us, these questions will become crucial, not just for companies like Google, Facebook, and Verizon (all of whom, for example, have relied on First Amendment defenses to both common law and regulatory claims) but also for consumers and citizens. Saving the rest of the Bill of Rights from the fate suffered by the ever-more-obsolete Fourth Amendment will at the very least require that judges not misunderstand the technologies over which they adjudicate.

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