The Next Supreme Court Justice: Here's What the Senate Should Ask About New Technologies and the Internet

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.

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.

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.

Mass Surveillance

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 t