At the 2013 Copyright and Technology Conference in London I rediscovered just how much the phrase “I know it when I see it” bothers me. In the case of Jacobellis v. Ohio in 1964, Potter Stewart, a Supreme Court Justice in the United States who died in the ’80s, was responsible for differentiating between what constituted hard-core pornography and what did not. Because no explicit criteria for differentiation came to mind, he made do with “I know it when I see it”. Not exactly a crowning achievement for an otherwise brilliant jurist.
It bothers me very little, of course, if an American judge in the ’60s had issues with defining the differences between hard-core and soft-core pornography and how he could express this. But what really drives me up the wall is that this phrase is one of the most often-quoted phrases in the history of American law. And I find it infuriating when lawyers repeat this phrase, beaming with pride, because they would like to decide something on gut instinct.
It is exactly this that I observed last week at the Copyright and Technology Conference. A British legal colleague was asked how it was possible to distinguish between legitimate and dubious cloud storage services. Apple iCloud, Dropbox, RapidShare, Microsoft Skydrive, Trend Micro SafeSync, Share-Online – the choice is far greater than the differences between the various providers. The question of the criteria by which one could distinguish the legal and the illegal offers from each other was thus entirely justified. His response in no way justified the seriousness of the question: Yes, the various products were quite similar to some extent, but certain providers were quite obviously recognized as dubious; ultimately, you could only proceed along the lines of the famous phrase “I know it when I see it.”
In no uncertain terms, the phrase “I know it when I see it” is nothing other than a jurist’s surrender to the reputed complexity of the circumstances. It is the abandonment of clear rules. It is the (brash) claim that, obligingly, it is permissible to make intuitive gut decisions because judges really only have good intentions. We give judges and courts the power to be permitted to make decisions that relate to us because this power is not unbounded, but exists within a clear framework made up of laws and judicial decisions. However, without a solid framework, the law becomes arbitrary, and innovations become risks for those who would create something new. What will the judge believe to know when dealing with the matter?
If things cannot be distinguished on the basis of the existing laws, then they must be treated equally. And, keeping with the example of cloud storage services, there are now in fact enough rules in the fields of data protection, copyright law, and competition law that legitimate providers must abide by. As long as these rules are complied with, jurists may not be permitted to evaluate a provider as dubious simply because they “know it when they see it”.
