When the Supreme Court first confronted the Internet as a major forum for ordinary Americans, Facebook did not exist.
Neither did YouTube, X, Instagram, TikTok or the iPhone.
Google had not yet been incorporated.
Amazon was still primarily an online bookstore.
Yet in 1997, the Supreme Court was already being asked a question that courts would spend the next several decades confronting:
Do the rules change when life moves onto a computer?
Congress had attempted to protect minors from sexually explicit material online through provisions of the Communications Decency Act of 1996. The law criminalized certain transmissions and displays of "indecent" or "patently offensive" material when minors could receive them.
The Supreme Court struck down the challenged provisions.
Its decision in Reno v. American Civil Liberties Union did much more than resolve a dispute over one federal statute. The Court rejected arguments for treating the Internet like broadcasting, which historically had been subject to greater government regulation, and recognized the Internet as a medium entitled to substantial First Amendment protection.
It was an early indication of something courts would discover repeatedly.
The Constitution had been written centuries before digital communication.
The problems were new.
The constitutional questions were not.
The Supreme Court Meets Cyberspace
The Internet described in Reno can sound almost primitive today.
The Court discussed email, newsgroups, chat rooms and the World Wide Web. It noted that approximately 40 million people were using the Internet at the time of the trial.
But the justices recognized something important about the technology.
Ordinary people were no longer merely receiving information from a limited number of publishers or broadcasters. Anyone with Internet access could potentially become a publisher.
The Court described the Internet as a new medium of worldwide human communication.
That characteristic mattered when the justices considered the Communications Decency Act.
The government had an unquestionably important objective: protecting children from harmful material.
But the challenged provisions went much further. The Court concluded that in trying to keep certain material away from minors, the law also suppressed a substantial amount of speech adults had a constitutional right to communicate and receive.
The decision did not make the Internet a lawless space.
Obscenity could still be regulated. Congress could still address online conduct. States and the federal government retained enormous regulatory authority.
But Reno established something fundamental.
Moving speech onto a computer did not cause the First Amendment to disappear.
That principle would become increasingly important as more of American life moved online.
Then the Phone Became Something Other Than a Phone
Seventeen years after Reno, police in California arrested David Riley following a traffic stop.
Officers seized a cell phone from him and searched its digital contents without first obtaining a warrant.
Information found on the phone connected Riley to gang activity and helped lead police to photographs and videos relevant to a shooting investigation.
The government argued that the search was permissible under a longstanding rule allowing police to search certain items associated with an arrested person.
The Supreme Court saw a problem.
A smartphone was technically an object found on a person.
But treating it like an ordinary physical object ignored what the device actually contained.
The dispute became Riley v. California.
In 2014, the Supreme Court unanimously held that police generally must obtain a warrant before searching the digital information on a cell phone seized from someone who has been arrested.
The Court emphasized the extraordinary quantity and variety of information modern phones can contain.
A wallet might reveal a few photographs and pieces of paper.
A smartphone can contain years of photographs, messages, browsing history, financial information, location information, contacts, medical information and access to remotely stored data.
The constitutional rule therefore could not be determined simply by saying that a phone happened to be physically located in someone's pocket.
The technology had changed the nature of the intrusion.
Importantly, Riley did not declare cell phones immune from police searches.
Police can obtain warrants. Other recognized exceptions can apply in particular circumstances.
The Court instead changed the default.
For the digital contents of a seized phone, police generally need judicial authorization first.
That distinction affects something millions of Americans carry every day.
Social Media Became Something Like a Public Square
Three years later, the Supreme Court confronted another question that would have sounded strange only a generation earlier:
Could a state prohibit someone from accessing Facebook and other major social-media websites?
The person challenging the law was Lester Packingham, a registered sex offender in North Carolina.
State law prohibited registered sex offenders from accessing certain commercial social-networking sites when those sites permitted minors to become members.
Packingham came to authorities' attention because of a Facebook post.
After a traffic ticket was dismissed, he posted a message celebrating the result. Police investigating whether registered sex offenders were using social media discovered the post, and Packingham was prosecuted.
The case eventually reached the Supreme Court.
In Packingham v. North Carolina, the Court struck down the North Carolina law in 2017.
The significance of the decision extended beyond the particular defendant.
The Court described cyberspace—and social media in particular—as extraordinarily important places for exchanging views and obtaining information. It recognized that people increasingly use these platforms to learn about current events, seek employment, speak with elected representatives and communicate with one another.
North Carolina had legitimate authority to protect children.
But the statute swept too broadly.
The government could not accomplish that objective by excluding an entire category of people from vast areas of modern online communication in the manner the statute attempted.
The decision demonstrated how dramatically the Internet's legal status had evolved.
In Reno, the Supreme Court was describing a relatively young technology.
Twenty years later, the Court was treating social media as an important location for participation in modern civic life.
What Counts as "Breaking Into" a Computer?
The Internet created another problem that had little precedent in the physical world.
What does it mean to enter somewhere you are already allowed to enter—but for the wrong reason?
That was essentially the question behind Van Buren v. United States.
Nathan Van Buren was a Georgia police sergeant.
As part of his job, he had legitimate credentials allowing him to search a law-enforcement database.
But Van Buren used that access for an illegitimate purpose.
During an FBI sting operation, he accepted money to search a license plate in the database for someone who wanted the information for personal reasons.
The search violated department policy.
Federal prosecutors went further.
They charged Van Buren under the Computer Fraud and Abuse Act, a federal statute that imposes liability in various circumstances involving unauthorized computer access.
A jury convicted him, and he received an 18-month prison sentence.
The Supreme Court ultimately reversed.
The key question concerned what Congress meant when it prohibited a person from "exceeding authorized access."
Van Buren unquestionably had permission to enter the database and retrieve license-plate information. His wrongdoing involved why he retrieved it.
In 2021, the Supreme Court held that the provision at issue covers someone who has authorization to access a computer but obtains information from areas of that computer—such as particular files, folders or databases—that are off-limits.
It did not cover Van Buren merely because he accessed information otherwise available to him for an improper purpose.
The distinction sounds technical.
Its implications are enormous.
Modern life is filled with computer systems that people are permitted to use subject to rules.
Employees have workplace computers. Students have school networks. Consumers have websites and apps governed by terms of service.
A broad interpretation of unauthorized computer access could potentially transform violations of computer-use policies into federal crimes.
The Court's interpretation drew a line between accessing information a person is technologically entitled to reach and misusing information the person was allowed to access.
Van Buren's conduct could violate other rules or laws.
But it did not constitute the particular federal computer-access crime charged against him.
A Private Recording Reaches the Internet and Airwaves
Technology also complicated another old legal problem: what happens when someone obtains private information unlawfully and another person publishes it?
That question reached the Supreme Court in Bartnicki v. Vopper.
The case began during contentious contract negotiations between a Pennsylvania teachers' union and a school board.
Someone secretly intercepted and recorded a cellular telephone conversation involving union negotiators.
The identity of the person who made the illegal recording was never established.
But the recording eventually reached a radio commentator, who broadcast portions of it.
The people whose conversation had been intercepted sued under federal and state wiretapping laws.
There was an important wrinkle.
The media defendants had not participated in the illegal interception.
They had received the recording afterward.
And the conversation concerned an issue of public importance.
The Supreme Court ruled in 2001 that imposing liability for publishing the recording under those circumstances violated the First Amendment. The Court emphasized the narrowness of its decision: the publishers had played no role in the illegal interception, had lawfully obtained the recording from their perspective, and its contents concerned a matter of public significance.
The ruling did not create a general constitutional right to hack accounts, intercept calls or steal private information.
The illegal acquisition and the later publication were distinct acts.
That distinction became increasingly important in a world where information can be copied perfectly and transmitted globally in seconds.
Sometimes the Government Itself Releases the Information
A related problem appeared in The Florida Star v. B.J.F.
A sexual-assault victim reported the crime to law enforcement.
The sheriff's department prepared a report containing her full name and placed the report in a press room accessible to reporters.
A reporter-trainee copied the report. The newspaper subsequently published the victim's name, inadvertently violating its own policy against identifying sexual-assault victims.
Florida law prohibited mass-media publication of a sexual-assault victim's identity, and the victim successfully obtained damages in state court.
The Supreme Court reversed in 1989.
Its ruling was deliberately narrow.
Where a newspaper lawfully obtains truthful information about a matter of public significance, the government generally cannot punish its publication unless doing so is narrowly tailored to an interest of the highest order. The fact that the government itself had mistakenly made the information available was particularly important.
The case preceded today's Internet.
Its underlying problem did not.
Government databases, court filing systems and public-record portals now allow information to spread with a speed unimaginable when The Florida Star was decided.
A document accidentally placed online can be copied before anyone realizes the mistake.
That creates a recurring tension between privacy and publication—and demonstrates why controlling information before it is released can be legally different from attempting to punish its publication afterward.
The Digital World Keeps Turning Physical Rules Into Difficult Questions
The cases do not establish that everything online receives special constitutional protection.
They establish almost the opposite.
Courts repeatedly begin with familiar legal principles and then have to decide whether applying those principles mechanically makes sense when technology changes the underlying facts.
A smartphone is physically an object in someone's pocket.
But Riley recognized that searching it is unlike opening a wallet.
A police officer can have permission to access a database.
But Van Buren distinguished being somewhere one is authorized to be from entering computer files that are actually off-limits.
The government can regulate conduct online.
But Reno rejected the idea that Internet speech automatically receives the reduced protection historically associated with broadcasting.
States can protect children from offenders.
But Packingham recognized that excluding someone from enormous portions of social media can implicate access to important channels of communication.
And laws can prohibit illegal interception of communications.
But Bartnicki distinguished the person who illegally obtains information from a publisher who did not participate in that illegality.
The Technology Changes Faster Than the Constitution Does
There is a reason these disputes keep returning to court.
Technology changes faster than legal doctrine.
The Fourth Amendment says nothing about smartphones.
The First Amendment says nothing about social networks.
Federal computer-crime statutes written when personal computing was young now operate in a world where refrigerators, automobiles, watches, doorbells and children's toys can be connected to networks.
That does not necessarily make old legal principles obsolete.
It makes deciding how they apply more consequential.
The Supreme Court's Internet cases have therefore become a history of technological change written through litigation.
First came the question of whether speech received constitutional protection when it traveled through a new global computer network.
Then came questions about online publication, social media, smartphones and access to computer databases.
Artificial intelligence, biometric identification, enormous collections of personal data and technologies not yet invented will produce questions of their own.
The devices will change.
The fundamental disputes probably will not.
Who may speak?
Who may listen?
What may the government search?
What information belongs to whom?
And when technology makes something possible that was impossible when the law was written, does the old rule still mean the same thing?
For nearly three decades, American courts have been answering that question one technology—and one case—at a time.
