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Court will have more impact on tech than Congress

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When President Obama announced new high tech manufacturing hubs and urged passage of a patent reform bill in his State of the Union address last week, there was much applause in the chamber of the House of Representatives. But the unspoken truth is that neither the President, the 435 members of Congress, or the 100 U.S. Senators will have much impact on the technology world in 2014. Instead, the nine members of the Supreme Court, sitting silently in the front row, hold the keys for much of technology’s direction this year and probably for several years to come.

The President’s annual State of the Union address has evolved into prime time political theater that is more show than substance. Last year, President Obama called for extending broadband into 99 percent of the nation’s schools. Last week, he said he was working to fund the project. The check isn’t even in the mail yet.

Technology leaders have high hopes that Congress will pass immigration reform this year that will allow highly trained foreign workers to remain in the U.S. They also feel optimistic that legislation to stop patent “trolls” – companies and law firms filing frivolous lawsuits – will finally win passage.

But this particular Congress is on pace to be the least productive in modern times. Only fifty eight bills were passed in the first of the current two-year session and partisan gridlock between the Republican-controlled House and the Democratic Senate will likely result in that number or fewer making it through this year. The odds of any meaningful legislation making it through Congress are as poor as any time in history.

To put the current gridlock in perspective, President Harry Truman famously railed against the “Do Nothing Congress” in 1947-48. In that two year session, Congress passed over 1700 bills. We are looking at a low water mark of historic proportions in 2014.

However, the real action this year will take place in a marble building across the street from the U.S. Capitol, where the nine appointed justices of the Supreme Court will rule on several cases of great interest to the technology world.

The court will soon hear arguments on what become known as the “Aereo case.” A two-year old startup, Aereo distributes broadcast TV signals over the Internet using a tiny antenna. Broadcasters, such as CBS or Fox, are fearful that Aereo’s growing popularity will sink their lucrative arrangement with cable and satellite providers who pay big money to carry their channels.

In another case, the high court will decide whether police can search an arrested suspect’s cellphone for evidence without a warrant. This decision is viewed as a key benchmark on individual privacy as it may well set the tone for whether the wholesale gathering of personal information by the NSA is legal.

And the justices will also rule in a case involving the distribution of porn victim images over the Internet and whether individuals who download those pictures or videos are liable for damages under the Crime Victims’ Rights Act of 2004.

Ironically, while Congress dithers over patent reform, the high court has already moved to rule in that area as well. Just last month, the court threw out a request for trial by an alleged patent “troll” called Souverain Software. The company had sued numerous retailers, including Amazon, over pieces of code tied to online shopping carts. The court is expected to hear two other patent cases and render decisions by the end of June.

The lack of action by either the executive or legislative branches of our government has placed the U.S. Supreme Court in a significant position of unprecedented power. The high court is poised to do more in the technology arena in nine months than either the White House or Congress will accomplish in two years. And because the court remains sheltered from the political lobbying process, there is not a single thing the tech industry can do about it.

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