Trump's Supreme Court pick will decide critical tech issues for decades – so what are the views of the contenders?
Privacy, net neutrality, mass surveillance... the small stuff
On Monday, President Trump is expected to announce his pick for the next US Supreme Court Justice – a decision that will come with huge implications for technology and privacy.
Given the current make-up of the court – and the fact that departing Justice Kennedy was often the swing vote in Supreme Court decisions – whoever is chosen will play a critical role in deciding future law.
While many are focused on the implications for issues like abortion, just as significant will be their views on technology. Society is finally catching up with the enormous impact of internet technology and big topics are bubbling their way up to the top court.
For example, just last month, in a critical decision over data and privacy, the court ruled for the first time that personal information stored on someone else's servers was covered by the Fourth Amendment and so requires a warrant to access.
In the next decade, there will be many more of these cases, making the views of the new Justice crucial. So we dug into what each of the four main contenders - Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh and Raymond Kethledge - have decided on tech issues and what it may herald for the future. We'll break it down by issue rather than judge.
As horrible as it is to contemplate, the hot button topic of net neutrality is not going anywhere.
With Congress hopelessly deadlocked and the FCC flip-flopping, it may take the Supreme Court to finally establish some kind of stability over the critical question of whether broadband providers are allowed to control the content that flows over their lines. This is not a simple issue and several components of it may appear in front of the Supreme Court for it to decide.
First up, there's the actual issue of net neutrality itself. As a member of the Washington DC circuit court, Kavanaugh has been center stage on this one due to the constant legal challenges on the FCC's rules, each decided in DC.
Kavanaugh opposed a decision to support net neutrality rules, arguing that they violated the First Amendment making them "unlawful." Those rules have since been rescinded by the current FCC administration – and that decision is currently being challenged in the courts.
The simple shorthand for this is that Kavanaugh is corporate friendly, and likely to be an old-school telco supporter (think AT&T) rather than modern corporate (Google). That would align him with the current FCC and so firmly against net neutrality.
There is another related issue on net neutrality, however: the power of a federal agency.
A Supreme Court decision back in 1984 created a precedent called the "Chevron doctrine" where the courts are expected to defer to a federal agency's interpretation of a law, unless Congress has specifically addressed the issue.
This would mean that the current FCC gets the courts' support, and so there'll be no net neutrality. But, in one of many mind-twisting potential conflicts, many of the potential new Justices are opposed to this precedent.
Kavanaugh has been explicitly critical of the Chevron doctrine. He has also consistently found against federal agencies, including the EPA and Consumer Financial Protection Bureau (CFPB). Kethledge is also a critic of the Chevron doctrine, having complained that it leads to sloppy decisions. And that may be especially critical given that Trump's other recent Supreme Court pic Neil Gorsuch is also a big critic of the doctrine.
So if net neutrality ends up in front of the court in this form – the rights of the FCC to decide what is done – it is very possible that the Supreme Court could find against the FCC due to the bigger issue of federal agency deference.
And then there is a third critical component: the old canard of state versus federal rights.
With the federal government having decided to scrap net neutrality, state governments – most notably California – have been devising their own net neutrality legislation to reinstate neutrality for their own citizens.
The big question may then become whether the federal regulator has the right to decide this issue because internet access is an inter-state service. The states are all too aware of this argument and so have been drafting legislation that goes out of its way to use state-specific powers to enforce net neutrality. Even so, it is likely to be challenged from a federal vs state perspective by telcos.
It's not clear where the potential Justices stand on this issue but typically Republican judges tend to be pro-state's rights, which could produce even more of a tangle of issues if this is the form of argument over net neutrality that ends up in the Supreme Court.
It could well be that the current FCC is supported in its efforts to scrap net neutrality but the United States ends up with de facto net neutrality anyway because so many states impose their own legislation.
California is often a state that introduces a new law and it slowly filters down across the rest of the country. When it comes to tech, this is especially true.
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As for the other potential Justices - Amy Coney Barrett and Thomas Hardiman – it's not clear where either of them fall down on these three different net neutrality aspects.
Barrett has been an academic most of her life and has sat on an appeals court for less than a year so there is very little detail about her legal positions. And Hardiman is on the Third Circuit Appeals Court – which is basically New Jersey and Pennsylvania – so he hasn't dealt with many tech issues or larger issues around federal regulators.
That said, Barrett has often expressed the view that big legal precedents don't need to hold (in legal language, stare decisis). Some have excitedly taken that to mean she would be willing to go against the seminal Roe v Wade abortion decision, but it could just as likely lead her to go against the Chevron Doctrine – and so end up undercutting the FCC's power.
In essence: if net neutrality ends up in front of the Supreme Court and Kavanaugh is chosen, he will likely find a way to kill it off. Otherwise, the anti-establishment views of all the likely Justices could see net neutrality put in place by limiting the FCC's powers.
Privacy is going to be the most critical topic for technology for the next 10, 20 or even 30 years.
Because of the ubiquity of the internet and devices like our smart phones and, of course, the enormous amounts of money that companies like Google and Facebook have figured out how to make from selling our personal information, it is increasingly easy and profitable to infringe on previous privacy norms.
If the Supreme Court continues down its current path – imposing and expanding controls over what tech can do – it will slowly throttle the commercialization of private data. And that will have big knock-on impacts on the tech industry and broader society. But if the court starts moving down a more free-market route, that could all change.
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Kethledge was a member of the court that decided that cell phone data on a third party's servers is not covered by the Fourth Amendment – a decision that the Supreme Court overturned last month in its Carpenter decision (which was 5-4).
He wrote: "The Supreme Court has long recognized a distinction between the content of a communication and the information necessary to convey it." That is a viewpoint that will have privacy advocates worried.
Kavanaugh is a reliably pro-corporate judge and so while he appears not to have addressed privacy issues head on, you can expect him to see the value in the dollar over the principle i.e. bye-bye privacy.
Again, the likely positions of Hardiman and Barrett are very hard to infer based on the decisions that have made. It's worth noting that Hardiman tends to have more of a heart, something that likely comes from his background – he was the first in his family to attend college and he worked as a cab driver to pay his way through law school.
Barrett is cold by comparison, actively arguing that a judge's personal views should not impact their decisions – although that may itself have been because she was being criticized for her strong Catholic beliefs (it's all about abortion in America).
When it comes to privacy issues, the arguments for it are likely to depend on people recognizing the impact that it can have on individuals, particularly the most vulnerable in society. So, if we were to hazard a wild guess, Hardiman would be pro-privacy and Barrett pro-corporate and hence anti-privacy.
To sum up: things don't look good if you think privacy should trump corporate profits.
The enormous upheavals that were sparked by Edward Snowden's revelations of mass surveillance have died down. After all, Congress scaled some back and reapproved some others.
But we have a niggling suspicion that spying on individuals is going to crop up again in the next decade or so, especially given the entirely unsettled issue of encryption backdoors and access to information.
Congress is absolutely terrified of this issue because it's like being stuck between a rock and a hard place – the security services on one side and voters on the other.
The intelligence services do everything in their power to keep the issue of mass surveillance and spying out of the limelight but with so many issues still unresolved it is very possible it will need additional legal clarification, and that in turn would ultimately mean the Supreme Court weighing in.
Kavanaugh is the person with the most history in this context and he is firmly pro-NSA, even writing an effusive defense of its mass surveillance programs. "The government's metadata collection program is entirely consistent with the Fourth Amendment," he wrote, adding that: "Critical national security need outweighs the impact on privacy."
Since any challenge to spying program is likely to focus on the Fourth Amendment then Kethledge's view that cell phone data held on third-party servers was not covered by it also points to a pro-NSA position.
Hardiman is, again, the most likely to push back against government spying. He backed a lawsuit that took issue with the NSA's surveillance programs and claimed that someone's personal docs held online may had been wrongly swept up by the spy agency.
And it's hard to know where Barrett stands. She tends to stand with the current authorities' viewpoint but also makes noises about challenging old laws. Our guess would be that she will go with whatever the security services insist is true.
The upshot: only Hardiman is likely to stand up to government spying programs if they make their way to the Supreme Court.
So who will win Trump's latest game show?
As for who will actually get the job, current thinking is that Kavanaugh is the most likely pick, but that in itself is causing a backlash from those who really want to overturn Roe v Wade because he is unlikely to vote it down.
If not Kavanaugh, then Kethledge is next most likely. Failing that, Hardiman. And least likely is Barrett because she has very limited expertise and because she's a woman and it's fair to say Trump seems to have a big problem with women in positions of power.
From a purely tech perspective, Hardiman would be the best choice; Kavanaugh, the worst. ®
Updated to add
President Trump nominated Brett Kavanaugh.