Brett Kavanaugh, President Donald Trump’s pick for the U.S. Supreme Court, will have a sweeping impact on American life if he’s confirmed for the job. The growing power of technology and internet companies will be one of the issues where he may make his mark.
Should the government break up Amazon.com Inc.? What rights do U.S. citizens have when it comes to how companies use their personal data to target advertising and make money? Who’s responsible when a self-driving car kills a pedestrian? It’s not hard to imagine landmark decisions on these questions and others in the coming years.
Kavanaugh, 53, is no stranger to tech. In 12 years on the Court of Appeals for the District of Columbia Circuit, he’s heard more than 20 technology-related cases, according to an analysis by Bloomberg Law. His rulings show a deference to the First Amendment, which guarantees free speech, as well as skepticism towards government meddling in the actions of people and corporations.
The biggest case involving tech issues that Kavanaugh has participated in is a 2017 net-neutrality ruling. The D.C. Circuit Court decided not to hear a challenge to the landmark rules instituted under President Barack Obama stipulating that internet service providers couldn’t pick and choose what content got faster access on their wires. But Kavanaugh dissented, arguing that taking away a company’s right to say what could and couldn’t be broadcast through its equipment was a violation of free speech. The rules were scrapped by the Federal Communications Commission in December but lawsuits from both sides are already winding their way through the courts.
Even before Kavanaugh got the nod from Trump, Democratic Senate leader Chuck Schumer of New York tweeted that the net neutrality case is an example of the judge siding with “powerful interests rather than defending the rights of all Americans.”
Kavanaugh’s reasoning on net neutrality could actually prove beneficial to the tech giants in some hypothetical future case where their dominance is questioned. He saw the government requiring internet providers to be content-neutral as the beginning of a slippery slope that could eventually force Amazon, Alphabet Inc.’s Google or Facebook Inc. to also adhere to a strict definition of neutrality, instead of having the power to clean up and regulate their platforms as they see fit.
“Can the government really force Facebook and Google and all of those other entities to operate as common carriers?” Kavanaugh wrote in his dissent. “Can the government really impose forced-carriage or equal-access obligations on YouTube and Twitter?”
Kavanaugh’s history also touches on another major issue facing tech companies today: privacy. He has argued that the U.S. government’s mass collection of phone call records didn’t violate people’s rights to be protected from warrantless searches under current laws. The data around a call didn’t meet the threshold for an invasion of privacy, he reasoned. Kavanaugh said the question was for politicians to figure out, not for the courts.
Government searches are different than a private company using customer data to make money, but his deference to Congress on the issue could signal that privacy advocates won’t be able to go after Facebook, Google and other data-collecting companies through the Supreme Court.
In another tech case, Kavanaugh ruled the government didn’t have a right to force all recreational drone flyers to register with the Federal Aviation Administration. Strict drone rules in the U.S. have pushed companies like Amazon to test drone services abroad.
As a conservative, Kavanaugh’s perspective will most likely be out of sync with the majority of employees at west coast tech firms, some of which have pushed their CEOs to speak out against Trump’s actions on immigration.
In one 2014 case, Kavanaugh argued for a strict interpretation of immigration rules outlining when workers with special skills are allowed into the U.S. to fill a job. That issue is core to many tech companies that have long argued there aren’t enough highly skilled workers in the U.S. to fill all the jobs they need at a rapid pace of growth. One major caveat: the case Kavanaugh ruled on was about Brazilian barbecue chefs, not coders.
In another immigration-related case, Kavanaugh ruled against allowing undocumented immigrants to participate in union elections. He also argued to block the request of an undocumented immigrant in U.S. custody for an abortion, saying the government should have more time to find the teenager an adviser to help her make the decision. Both of these cases could fire up left-leaning tech workers, who may press their companies to oppose Kavanaugh’s confirmation.
One case Kavanaugh may have a say on soon will either cement or dismantle a core part of many internet companies’ business models: walled-off marketplaces like Apple’s App Store.
The court is preparing to hear Apple’s argument on why it doesn’t monopolize the market for iPhone apps. Apple is trying to kill a lawsuit that accuses the company of suppressing competition by requiring developers to sell apps exclusively through its App Store if they want to be approved, and charging them a 30 percent commission. Apple says it charges developers, not consumers, and that a previous Supreme Court ruling allows it to do so.
Tech companies have so far been silent on Kavanaugh. A spokesman for the Information Technology Industry Council, which represents Amazon, Facebook, Alphabet, Oracle Corp. and other major tech companies, declined to comment on Kavanaugh.