We hope that the Court will ensure that constitutional protections extend to our digital landscape. To better understand whether Kavanaugh is likely to help or hinder, here are a few questions Senators should ask.
Camille Fischer, Corynne McSherry, and Shahid Buttar write:
Brett Kavanaugh’s nomination has sparked a great deal of discussion about his views on reproductive rights and executive authority. But the Supreme Court tackles a broad range of issues, including the present and future of digital rights and innovation. As Congress plays its crucial constitutional role in scrutinizing judicial nominees, Senators should take care to press the nominee for his views on how the law should address new technologies and the Internet.
As an initial matter, any nominee to the Supreme Court must appreciate how the Court’s rulings may impact digital rights now and far into the future. In a 1979 case called Smith v. Maryland, for instance, the Supreme Court ruled that people do not have a privacy interest in information they hand over to third parties (like the numbers you dial on a telephone). That case—where police had reasonable suspicion that a single individual was committing a specific crime—has shaped police practice in the digital age, and provided a contorted legal defense for mass domestic surveillance programs like the NSA’s call-records program, even though they subject millions of people to continuous monitoring based on no suspicion of any particular crime.
But the Court is starting to understand how much the Internet and the ubiquity of mobile devices have changed daily life in the United States. In Packingham, the Court acknowledged that social media has become the “modern public square,” and in Riley the Court ruled that law enforcement cannot search cell phones at the time of arrest because of the vast quantities of personal data they store. And just a few weeks ago, in Carpenter the Supreme Court ruled that the 4th Amendment applies to cell-phone-based location tracking—so if law enforcement wants historical customer location information from cell-phone providers, they will now have to get a warrant.
We hope this is a trend, and that the Court will do its part to ensure that constitutional protections extend to our digital landscape. To better predict whether Kavanaugh is likely to help or hinder, here are a few questions the Senate should ask him, keeping in mind that nominees traditionally steer clear of commenting on specific pending cases.
In 2015, the D.C. Circuit refused to hear a case challenging the NSA mass telephone surveillance program. Kavanaugh issued a concurrence saying:
“The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979)…”
And that even if the collection is a search, it is reasonable because:
“The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States See The 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”
Given this broad assertion, the Senate should ask:
- Fourth Amendment jurisprudence requires the government to have individualized suspicion before intruding against a person’s privacy. How would the Framers view mass data collection by the government—for example, copying or viewing all Internet activity routed through a service provider?
- How should the Constitution address those who are impacted by, but not targeted by, surveillance?
- Do you believe that the government can collect digital information from individuals without that collection constituting a “search” for Fourth Amendment purposes?
- Do people have a privacy interest in metadata that can be used to create a detailed timeline of someone’s actions?
- Do bulk surveillance programs that create detailed pictures of the lives of millions of Americans, where they go, and who they associate with, implicate rights guaranteed under the First Amendment?
- Are there any constitutional limits on the executive branch’s national security authority? What are they?
- You have written that the government’s bulk collection program is a special need. What factual showing should the government make to use this doctrine? Is there a distinction between special needs exceptions for national security and law enforcement purposes?
Law Enforcement Access to Digital Information
When US v. Jones was on appeal before the DC Circuit, Kavanaugh issued a dissent arguing that a person has no reasonable expectation of privacy in their “public movements,” but law enforcement nonetheless violated the 4th amendment by tampering with Jones’ car.
To better understand Kavanaugh’s view on digital privacy, the Senate should ask:
- Do you believe that a person has a reasonable expectation of privacy when they move about in public?
- Does tracking the location or other information about a subject over long periods of time implicate any further interests?
- Is the reasonable expectation of privacy a “failed experiment?”
- Do rights to privacy extend beyond a person’s property interests? Do you agree with the well-settled law long established in this area?
- Do Terms of Service agreements and other contracts that caution users that their information may be shared with the police affect a person’s privacy interest?
- Law enforcement is now using technologies like Automated License Plate Readers to track people as they move in their cars. Can the volume of data become a privacy harm, or a harm to First Amendment principles such as freedom of association, speech, and assembly?
- With “smart cities” on the rise – cities that are beginning expansive government and third party data collection programs to offer more tailored services to the public – do constitutional safeguards against unreasonable searches extend to data the government has collected for a non-law enforcement purpose?
In a dissenting opinion, Kavanaugh decried the DC Circuit’s decision upholding the 2015 Open Internet Order — and order, for which millions of Internet user fought long and hard, that forbade practice such as throttling, blocking, and pair prioritization– saying that the Federal Communications Commission did not have clear authority from Congress to issue the 2015 Order. He also insisted that the rule infringed upon Internet service providers’ First Amendment rights. In fact, as EFF and ACLU explained in an amicus brief, while the ISPs do have First Amendment rights, the 2015 net neutrality rules appropriately balanced those rights against the public interest in a neutral Internet.
- In light of this case and the multiple ongoing efforts to rescue net neutrality after the FCC abdicated its role in protecting the Open Internet, the Senate should ask:
- Can paid prioritization practices run afoul of consumer protection or civil rights laws?
- How should the broadband Internet market be analyzed under current competition laws?
- Does the Federal Communication Commission have the authority to determine the classification of broadband internet service providers?
- Does the Communications Act occupy the field and preempt states and municipalities from passing their own laws blocking throttling, paid prioritization, and zero rating by broadband internet service providers?
- How would the Constitution view Federal attempts to limit State broadband regulation?
Recent Supreme Court rulings have provided some balance to a patent system that many thought had gotten out of control. For example, in a 9-0 decision in Alice Corp v. CLS Bank the court invalidated an abstract software patent, essentially ruling that adding “on a computer” to an abstract idea does not make it patentable. The Court also ended rampant venue shopping that had led to more than 1,000 patent cases a year being filed in the courtroom of a single federal judge in East Texas. Thanks to decisions like these, many small businesses have been able to stave off unfounded legal threats.
Patent cases continue to appear on the Court’s docket, many of which will have consequences for software patents. To figure out Kavanaugh’s views, the Senate should ask:
- Some people say that the U.S. patent office issues too many bad patents, allowing patent trolls to threaten operating companies trying to innovate, especially small start-ups. Others say the Supreme Court has gone too far in its recent cases that cut back patent protection on abstract ideas. What do you think are the purposes of our patent system?
- Do you think that patent protection should extend to laws of nature or abstract ideas? Should small businesses have ways to protect themselves from unmeritorious patent claims, other than paying litigation cost-based settlements?
In addition, the long-running Oracle v. Google case may finally make its way to the Court, potentially giving the Justices a chance to opine on both the scope of copyright in software and the application of the fair use doctrine. The central question in the case is whether Oracle can claim a copyright on Java APIs and, if so, whether Google infringed these copyrights. Many, including EFF, argued that the APIs in question were not copyrightable in the first place. If the Court decides to review the case, its decision could affect software development for many years to come. Again, Kavanaugh won’t comment on pending cases, but the question of the scope of copyright is likely to come up one way or another. Given the impact of this area of law on digital innovation and expression, the Senators might ask:
- What is the purpose of copyright generally? Do copyrights (and patents) exist primarily to reward their owners, or should their grant benefit the public generally?
- Are there situations in which copyright may disserve innovation and expression? How should courts deal with such a situation?
- Is fair use an affirmative right as opposed to a narrow defense?
- Should companies that want to use a small portion of another’s copyrighted work be required to get a license, rather than rely on fair use? One of the judges for whom Kavanaugh clerked, Alex Kozinski, has publicly stated that a license should be required, rather than using an unlicensed work under circumstances that are fair use. Does Kavanaugh agree?
- Can software be covered by both patent and copyright? Are there limits to this?
Finally, many widely relied-upon Internet functions are now controlled by a few giant companies, and the dominance of these companies has proven to be sticky. It’s still easy and cheap to put up a website, build an app, or organize a group of people online—but a few large corporations dominate the key resources needed to do those things, and basic Internet access as well. That, in turn, gives those companies extraordinary power over speech, privacy, and innovation.
Against this background, policymakers are considering whether and how to recreate conditions for competition. Many are looking to antitrust law for a solution, but it’s not yet clear how antitrust law will apply to these circumstances. Meanwhile, the DOJ’s challenge to the AT&T-Time Warner merger is on appeal. If the DOJ or the FTC decides to take on the tech giants, and/or the appeal reaches the Supreme Court, its ruling could reshape competition law. The Senate might ask:
- Does antitrust law authorize courts to remedy harms caused by the lack of competition in a given market, or is it limited to ensuring a narrow measure of consumer welfare? For instance, can regulators and courts scrutinize the acts of a monopolistic enterprise that lowers prices for consumers but also undermines competition?
Senate confirmation hearings for Supreme Court justices have been described as a “Kabuki” performance. With the next generation of American jurisprudence—and technology—hanging in the balance, we encourage Senators to thoughtfully and rigorously challenge the nominee to share his views.