It Pays to Know IT When Dealing With the U.S. Justice System

Law John Roberts gets IT.

So say lawyers who have worked with or argued cases before Roberts, President Bush’s choice to become chief justice of the Supreme Court (his confirmation hearings were in progress at press time). Roberts, who once represented 19 states in their antitrust lawsuit against Microsoft, is known for his ability to apply simple legal principles to complex technology cases.

Assuming he is confirmed as expected, Roberts joins the Supreme Court as it begins a new term this month. His approach to IT-related cases should be welcome to CIOs—who can be the victims of murky rulings.

As a judge with the U.S. Court of Appeals, Roberts presided over a 2003 case in which the Recording Industry Association of America sought to subpoena Verizon’s Internet subscriber records to track suspected music pirates. The question in the case was whether Verizon as an ISP had to respond to such subpoenas. The decision hinged on whether Verizon’s position as a conduit for a peer-to- peer network was any different from its hosting the files itself.

Andrew McBride, a partner with Wiley Rein & Fielding who represented Verizon, says Roberts “understood the difference between a peer-to-peer network and [hosting an] FTP site.”

The court ruled Verizon did not have to answer the subpoenas. During oral arguments, Roberts made the point that if someone exposes a file through a peer-to-peer network, that person is not culpable for that file being used illegally, just as someone who leaves the door to a library open is not culpable for violating a copyright if someone copies the books inside. This line of thinking became the foundation for the decision.

Roberts’s nomination could have an impact on future technology-related cases because of the chief justice’s power to decide who writes the opinion in cases where he’s in the majority, says Andrew Bridges, a copyright and intellectual property litigator with Winston & Strawn.

It remains to be seen, Bridges says, whether Roberts will be a judicial activist in such cases or whether he will avoid legislating from the bench and stepping on Congress’s toes.

These philosophies were at odds in the recent MGM v. Grokster case, in which the high court ruled that vendors of peer-to-peer software could be sued if they encouraged illegal copying, although the software itself wasn’t illegal.