U.S. Supreme Court nominee Judge Brett Kavanaugh used his Senate Judiciary Committee confirmation hearing Thursday to explain why the evolution of technology is a crucial issue amid worries over the power of tech giants such as Facebook, Google and Twitter.
The discussion was prompted when Sen. Jeff Flake (R-Ariz.) asked Kavanaugh about the evolving role of technology in everyday life, noting that lawmakers have struggled to strike a balance among privacy, innovation, security and freedom. Flake predicted the issue will remain prominent among major judicial cases in the years ahead.
“Senator, I do think that technological developments are going to be a huge issue for the Supreme Court over the next generation,” Kavanaugh said. “Chief Justice [John] Roberts has been writing some of the key opinions. The Carpenters case more recently, which was a very important decision. The Reilly case before that.”
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The debate has involved whether the government can obtain personal data from companies such as social media sites or through third-party vendors. Kavanaugh said getting information through a third party once didn’t constitute a privacy violation but that technology changes since have changed the situation.
“But now all of your data is in the hands of a business, a third party, and the government obtains all your data, your emails, all your texts, all your information, your financial transactions,” Kavanaugh said.
“Your whole life is in the hands of a data company, and the government gets that, your privacy is very well affected. And that’s the importance of the Carpenter decision in that it recognizes that change and our understanding of privacy,” he said.
The U.S. Supreme Court determined that the government must have a warrant to access cellphone data when ruling in Carpenter v. United States. Kavanaugh said Roberts has worked hard to ensure innovations are consistent with the Fourth Amendment, which guarantees every U.S. citizen security against illegal searches and seizures by government officials.
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Congress has grown more interested in technology in recent years, with the undeniable impact it has on the economy and society. Even as the Kavanaugh hearing was occurring, the House Energy and Commerce Committee took testimony from Twitter CEO Jack Dorsey and other tech executives on censorship of conservatives in social media.
Facebook CEO Mark Zuckerberg faced his own grueling hearing over similar concerns April 10. He denied that his company censors conservatives, but he also promised to limit opinions judged to be objectionable.
Kavanaugh has decided recent cases based on what he refers to as the “major rules doctrine.” He explained in the dissent for the 2017 case United States Telecom Association v. Federal Communications Commission that Congress must clearly express if it wishes to assign an agency authority of vast economic and political significance.
Kavanaugh has also resisted the expansion of administrative agency power when ruling on past cases, particularly in regard to the Environmental Protection Agency. He has, however, rejected two challenges to the constitutionality of former President Barack Obama’s Affordable Care Act, otherwise known as Obamacare.
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