Supreme Court nominee Brett Kavanaugh is poised for a lifetime shaping the nation’s laws, and no area is more likely to see movement than technology as justices wrestle with how the Constitution applies to modern devices.
The 53-year-old prospective justice could serve longer than the Internet has existed, and will help clarify disputes slowly working through the courts.
Among the first fights he’s likely to see is Apple Inc. v. Pepper, an antitrust lawsuit by customers of the iPhone App Store that is the biggest tech case of the Supreme Court’s current term, with arguments possible as early as December.
The lawsuit alleges the App Store violated the Sherman Antitrust Act of 1890. Justices accepted the case to settle whether customers can sue when prices are set by a third party, in this case developers who must pay to access the platform.
The case could be a blow to tech giants Apple and Google, which operates Play Store for Android phones. The companies face pressure in Europe from regulators probing possible anticompetitive behavior, and the case could broaden risk in the U.S.
“As technology companies increasingly dominate the global economy and transform society, tech policy issues will increasingly appear before the Supreme Court,” said Bruce Mehlman, a former assistant secretary for technology policy at the Commerce Department.
“The court will more frequently face questions of digital federalism — local regulation of a global medium,” Mehlman said, as well as “data antitrust [in instances] where dominant services may be free to consumers, and personal privacy in an age of hyper-customization of good, medicines, and products.”
In more than a decade on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh ruled on some still-unsettled tech disputes, including government-mandated net neutrality and domestic mass surveillance.
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In one major case, Kavanaugh wrote that companies that offer Internet access have First Amendment rights to control what customers see. He wrote in a dissent that the Federal Communications Commission acted unconstitutionally by forbidding Internet providers from discriminating against traffic for profit.
Kavanaugh likened companies that offer Internet access to publishers. “The First Amendment bars the government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market,” he wrote.
That dispute could arise again if Democrats retake the presidency and with it the FCC.
Another Kavanaugh rulings stands out. In 2015, the D.C. Circuit refused without comment to rehear a case against the National Security Agency’s dragnet daily collection of millions of domestic call records. Kavanaugh attached a concurrence saying the dragnet, which Congress voted to end after it was exposed, was constitutional, rejecting a lower judge’s conclusion it likely violated the Fourth Amendment.
Kavanaugh wrote that the dragnet did not constitute a “search” under the Fourth Amendment, citing the third-party doctrine established by the Supreme Court’s 1979 decision in Smith v. Maryland — a common perspective among judges, though one that may ultimately be revisited.
But he added that even if it was a “search,” the government could take the records because it had a “special need” in preventing terrorism, overriding privacy interests.
The breadth of Kavanaugh’s “special need” concept is unclear, but the case dealt with millions of U.S. phone lines and records stored for five years. Although created to prevent terrorism, a 2014 government agency report found no evidence it helped disrupt any terror plot.
“Kavanaugh went out of his way to position himself at the outer limits of executive power,” George Washington University law professor Jonathan Turley said recently. “Notably, it runs against the type of protective approach of recent cases like Carpenter,” he said, referring to a recent Supreme Court ruling requiring a warrant for authorities to collect historical cellphone location data.
In the Carpenter ruling, justices side-stepped Smith v. Maryland, but stressed some data wasn’t “voluntarily” shared with companies, meaning authorities need a warrant. Similar analysis could expand to other technologies in cases before lower courts — including internet-connected household and wearable items, such as thermostats or Fitbits, and real-time cellphone location data taken by police with cell-site simulators.
Sen. Orrin Hatch, R-Utah, asked Kavanaugh at his confirmation hearing last week, “How do we interpret our laws in light of changing technology?”
“The job of a judge is to focus on the words written in the statute passed by Congress,” Kavanaugh said. “As I look ahead over the next 10-20 years, that balance of 4th Amendment liberty and privacy versus security and law enforcement is an enormous issue.”
