Freedom of Information Act, copyright, warrantless searches of private residences, the “state secrets” privilege and freedom of expression.

The cases we’re tracking involve regulation of videogame sales, the limits of the Copyright Act’s  first-sale doctrine and the power of the government to collect sensitive data on employees. Another case asks whether convicted defendants have a right to use modern DNA testing to prove their innocence.

Ruling on these issues is a rapidly changing high court, with four new appointees in five years, creating the youngest court in the modern, digital age.

“You’re getting a new generation of justices. You’ve got justices who text on their phones, who do e-mail, who actually use a computer,” says Thomas Goldstein, the SCOTUSblog founder who has argued nearly two dozen cases before the Supreme Court. “That can have real consequences. It makes a difference.”

The Supreme Court hears about 60 to 75 cases annually. About four dozen cases have been chosen so far, and a number of crucial cases from the appellate courts are vying to be added.

One Fourth Amendment case not added to docket, but which might reach the court this term, concerns the so-called “plain view” search doctrine, which lets police seize evidence not named in a warrant. The case, which the Obama administration is mulling whether to appeal to the Supreme Court, asks the question: When the authorities seize a hard drive with a warrant, can they search though folders to find other evidence not sought in the warrant?

And the justices might take their first individual file sharing case, as part of the Recording Industry Association of America’s litigation campaign that has ensnared more than 20,000 file sharers. The high court has shown an interest in the case of Whitney Harper, an admitted file sharer who argues she should not be held liable for infringement because she did not know she was committing copyright infringement as a teen.

Here is a summary of some of the upcoming cases that have been granted a hearing by the Supreme Court:

Costco Wholesale v. Omega, 08-1423

Oral argument Nov. 8

Question presented: Does the first-sale doctrine apply to imported goods manufactured abroad?

Costco was selling the Omega Seamaster watch for about $1,300, well below the $2,000 recommended U.S. price. Omega, of Switzerland, had copyright the watch design in the United States by imprinting the company’s emblem on the underside of the timepiece. Omega sued Costco for copyright infringement, because it was obtaining the watches from unauthorized dealers in Europe, which sold them far cheaper than U.S.-based Omega distributors.

But under the U.S. Copyright Act, the first-sale doctrine generally allows the purchaser of a copyright work to resell the work without the copyright holder’s permission. That’s why we have used book stores, record stores, GameStop and even eBay.

That didn’t stop the 9th U.S. Circuit Court of Appeals from siding with Omega. The San Francisco-based appeals court ruled that the first-sale doctrine did not apply to Omega watches because they were made overseas. That meant Costco was liable for copyright infringement for the unauthorized resale of Omega’s ware because Costco purchased them via unauthorized channels.

Costco appealed to the Supreme Court, pointing out that the ruling effectively urges U.S. manufacturers to flee the United States to acquire complete control over distribution of their goods in the American market. The Obama administration has taken Omega’s side, writing that the “Copyright Act does not apply outside the United States.” If it did, the administration told the justices, that would be an “extraterritorial application of U.S. regulatory statutes.”

Say bye bye to eBay if Costco wins.

Schwarzenegger v. Entertainment Merchants Association, 08-1448

Oral argument Nov. 2

Question presented: May the states ban the sale or rental of violent video games to minors?

The case concerns a 2005 California ban adopted by state lawmakers. The 9th U.S. Circuit Court of Appeals in 2008 overturned the law, saying there’s no evidence that violent videogames harm youngsters.

Six other states and several local governments have adopted similar videogame laws — which provide for a $1,000 fine for sellers — despite the game industry’s voluntary videogame-rating labels. The Supreme Court in 1968 allowed the states to adopt laws that keep ”obscene” sexual content away from kids, but not violent content.

If the law is upheld, it could be a harbinger of more speech regulation to come. Even the Motion Picture Association of America and the Electronic Frontier Foundation, virtually enemies on every front, agree on that point, and oppose the California law.

“Videogames are fully protected speech, and both the ‘violence’ and ‘interactivity’ feared by California’s law are expressive aspects of books, plays, and movies — not just videogames,” EFF senior staff attorney Lee Tien says. “The government can’t regulate speech content, even to protect children, if there are reasonably effective private rating systems and parental-control tools that don’t interfere with our First Amendment rights.”

On the other side, the Eagle Forum Education & Legal Defense Fund, which describes itself as a “pro-family group,” urged the justices to uphold the law.

The statute, the group told the justices, is “constitutional because it facilitates parental control over the upbringing of their children. Finally, children playing videogames are the equivalent of a ‘captive audience,’ and the statute is constitutional by protecting this audience against image abuse.”

Skinner v. Switzer, 09000

Oral argument Oct. 13

Question presented: Do convicts have a right to post-conviction DNA testing?

The case concerns condemned Texas inmate, Henry Watkins, who was convicted of the 1995 murder of his girlfriend and her two sons. Watkins claims breaches of his Fourth Amendment due process right and Eighth Amendment right to be free from cruel and unusual punishment, because he hasn’t been allowed a test of the DNA found at the crime scene.

The Texas state and federal courts — hearing Skinner’s habeas corpus pleas — refused to allow post-conviction testing of biological evidence, including blood, hair, fingernail clippings and vaginal swabs.  The courts held that, under Texas law, a convict must prove, by a preponderance of the evidence, that he or she would not have been prosecuted or convicted had DNA testing been performed. To get DNA testing, a Texas inmate must also demonstrate that his failure to seek such testing at trial was not a strategic decision.

With nowhere else to turn, Skinner sued local prosecutors under a federal civil rights statute, and the Supreme Court halted Skinner’s execution to determine whether he could gain DNA access via that legal avenue. The states claim that such legal jockeying is a backdoor attempt to rewrite both state and federal death-penalty law.

At least 22 states told the justices that granting Skinner DNA testing through a civil rights suit would undermine their individual statutes, which spell out when an inmate is entitled to it.

“To allow this type of procedural legerdemain would both diminish the sovereign interests of the states and at the same time impose a significant burden on the states’ limited law enforcement resources,” attorneys general from the 22 states wrote.

National Aeronautics and Space Administration v. Nelson, 09-530

Oral argument Oct. 5

Question presented: How much personal information may the federal bureaucracy dig up about its workers?

The justices are weighing a lower-court decision surrounding the concept of so-called “informational privacy.” The 9th U.S. Circuit Court of Appeals struck down intrusive background checks last year on nearly three dozen NASA contractors as being an invasive, unconstitutional “broad inquisition.”

The checks sought information from any and all sources about the contractors’ sex lives, finances and any drug use. The contractors being investigated were not privy to classified information.

The Obama administration, in seeking review of the lower-court decision, told the justices the checks were the same type conducted on all federal government workers -– now numbering about 14 million. The background checks are part of a 2004 security directive from President George W. Bush.

“The ramifications of the decision below are potentially dramatic,” the Obama administration told the justices in its petition to the court.

The NASA contractors worked at the Jet Propulsion Laboratory in Pasadena, California, which generally engages in the scientific study of the Earth and solar system.

“I’m afraid that based on the law and precedent, it’s going to be a tough road for that case to be affirmed. I think the government is going to win on that,” says Daniel Solove, an information-privacy expert and professor at George Washington University.

The administration said collecting the background information, as opposed to disseminating it, was constitutionally acceptable.

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Authors: David Kravets

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