Is Judge Kavanaugh a “Disaster” For Tech?

After President Trump nominated D.C. Circuit Judge Brett Kavanaugh to fill the vacancy left by retiring Supreme Court Justice Anthony Kennedy, the paper of record for Silicon Valley – the San Jose Mercury News – declared:

President Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court is a disaster for the technology industry and the users of tech products. The DC Circuit Court judge’s positions on such critical issues as net neutrality, privacy, executive power and immigration are serious threats that could set back the tech world for decades.

Below is an overview of Justice Kavanaugh’s nomination, with a focus on his views on privacy and tech-related issues.  His record demonstrates that he is staunchly anti-net neutrality, not very warm to privacy concerns, has an expansive view of Presidential power and could be a closet judicial activist.

Also, be sure to listen to my interview with Camille Fischer from the EFF on the Kavanaugh nomination.

Overview

  • Background

Judge Kavanaugh is 53 years old (only Justice Gorsuch is younger).  If confirmed he would give the Court a Catholic majority for the first time.  Kavanaugh is a true Beltway insider, having grown up in Bethesda and is a big Washington Nationals fan.

  • Career Summary1

After graduating from Yale Law School, Kavanaugh worked for George H.W. Bush’s Solicitor General Ken Starr before clerking with Supreme Court Justice Kennedy.  Kavanaugh later joined Starr at the Independent Counsel’s office where he helped write the “Starr Report” making the case for impeachment of President Clinton.

He joined the D.C. office of Kirkland & Ellis where he was pro bono counsel for relatives of Elián González and also played a role in the legal battles over the 2000 Florida recount.

Kavanaugh joined the George W. Bush White House, first as Associate White House Counsel and then as White House Staff Secretary.  Bush nominated him to the D.C. Circuit Court of Appeals in 2003, but his confirmation was delayed until 2006 when he was approved by a 57-36 vote.

Procedural Controversy

A mere two years after Senate Majority Leader Mitch McConnell said that President Obama’s nomination of Merrick Garland to fill the Supreme Court vacancy should not be voted upon close to an election, McConnell is pushing to get Kavanaugh confirmed before the midterm elections.  Merrick Garland was nominated 237 days before the 2016 election, while Kavanaugh’s nomination was a mere 119 days before the 2018 elections.

In addition, for the nominations of Justices Sotomayor and Kagan, Republicans insisted on voluminous records covering their entire legal career.2    While the Obama administration produced 100 percent of Justice Sotomayor’s records and 98 percent of Justice Kagan’s records, the Trump administration is only providing approximately 10 percent of Kavanaugh’s records.  Of these records, Senate Judiciary Committee Chairman Grassley has designated about one-third of the records as “Committee Confidential” and may not be disclosed to non-Committee members.

Notably, the Trump administration and Senate Republicans are not producing or even requesting records from Kavanaugh’s work as Staff Secretary for President Bush preventing an examination of his role in some of Bush’s more controversial policies including its warrantless wiretapping and torture policy.  In 2006, Kavanaugh denied having had any role in these policies, but evidence emerged in 2007 that showed Kavanaugh was involved in these issues.  Even worse, once on the D.C. Circuit Kavanaugh heard several cases relating to the detention of terrorism suspects, but did not recuse himself.3

The Republican stonewalling on the nomination has led one group to produce the opposition spot below, while the New York Times editorial board has openly asked why Republicans are covering up Kavanaugh’s past by “running the most secretive and incomplete confirmation process in modern history.”

Net Neutrality

US Telecom Association v FCC, 855 F. 3d 381 (D.C. Cir. 2017)

This case involved a petition for en banc review of the 2016 order upholding the Federal Communications Commission’s (FCC) 2015 Open Internet Order.  The court denied a petition for a review of the order en banc, i.e., by the full D.C. Circuit panel.  Judge Kavanaugh dissented from the court’s 2017 en banc ruling asserting that the FCC lacked clear congressional authorization to issue the rules.  The majority, however, felt the question of whether the FCC had this authority was resolved “definitely and authoritatively” in the affirmative in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) – a case cited by Kavanaugh in his dissent.

Kavanaugh also argued that the Open Internet Order violated ISP’s First Amendment rights.

Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

The majority dismissed this argument.

[N]o Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule — i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of theirown choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP’s own commercial preferences.

Gigi Sohn, who was counsel to the architect of the Open Internet Order – FCC chairman Tom Wheeler, asserted that Kavanaugh’s view represents the “fringe of First Amendment jurisprudence.”4

For 85 years, the First Amendment rights of network operators like ISPs, broadcasters, and cable operators have always been balanced with the rights of the public.  Kavanaugh’s ascension to the bench could start the mainstreaming of a legal theory that would all but eviscerate the public’s rights with regard to networks that use public rights of way, and by law are required to serve the public.

Privacy

Klayman v Obama, 805 F.3d 1148 (D.C. Cir. 2015)

In another decision rejecting en banc review, this time Kavanaugh sided with the majority in denying review to an order rejecting a challenging the National Security Agency’s warrantless mass telephone surveillance program.  Kavanagh asserted that the program was “entirely consistent with the Fourth Amendment”.   Kavanaugh did not consider bulk collection of telephony metadata to be a search under the Fourth Amendment, but even if it was a search it was not unreasonable since

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.

U.S. v Jones, 625 F.3d 766 (D.C. Cir. 2010)

In Jones, the government sought en banc review of a ruling that the warrantless use of a GPS device to track the public movements of Jones’ vehicle for approximately four weeks was an unreasonable search in violation of the Fourth Amendment.  In a 5-4 decision, the court denied the request, but Kavanaugh dissented.  The dissenters argued that the decision was inconsistent with the Supreme Court’s ruling in  United States v. Knotts, 460 U.S. 276, 281 (1983) which uphold the use of a radio transmitter placed in a car since “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

Kavanaugh noted that he was not sure if the government would prevail if the review was granted, in part due to the “police’s physical intrusion to install the GPS device”.  A unanimous Supreme Court upheld the majority’s decision based on this physical intrusion.  United States v. Jones, 565 U.S. 400 (2012).

Kavanaugh’s rulings have been criticized on both the left and the right.5  Senator Ron Wyden argued that:

Kavanaugh has shown again and again that he will side with Big Brother and big business ahead of the liberty of individual Americans.  His decisions on mass surveillance and warrantless tracking of Americans’ every move are out of step with both the Fourth Amendment and the Court’s recognition that digital devices are different.

While Congressman Justin Amash (R-Mich.) was also critical of Kavanaugh.

Future decisions on the constitutionality of government surveillance of Americans will be huge.  We can’t afford a rubber stamp for the executive branch.

Intellectual Property

Since USPTO appeals go to the Federal Circuit, Judge Kavanaugh’s record on intellectual property rights is limited to a handful of decisions involving the Copyright Royalty Board.

Antitrust

FTC v. Whole Foods Market, Inc., 548 F.3d 1028 (D.C. Cir. 2008)

United States v. Anthem, Inc., 855 F.3d 345 (D.C. Cir. 2017)

In these two merger cases, Judge Kavanaugh took a decidedly pro-business, pro-merger point of view.  The American Antitrust Institute (AAI) has come out against Kavanaugh’s nomination since his views are “outside the mainstream, bipartisan consensus supporting antitrust enforcement for the benefit of consumers, workers, suppliers, and other beneficiaries of competition in the U.S. economy.”

Judge Kavanaugh’s opinions and decisions on the D.C. Circuit demonstrate hostility to antitrust plaintiffs, including the expert federal antitrust agencies. In particular, his dissents in two prominent merger cases signal a doctrinaire skepticism of threatened anticompetitive harm, leniency toward efficiencies claims that presumptively illegal mergers are procompetitive, and a willingness to disregard plaintiff-friendly precedent.

Other Opinions and Comments

  • Immigration
    Agri Processor Co., Inc. v. NLRB, 514 F.3d 1 (D.C. Cir. 2008)
    In dissent, Kavanaugh argues “an illegal immigrant worker is not an “employee” under” labor laws despite Supreme Court precedent to the contrary.The San Jose Mercury lamented that Kavanaugh likely would support President Trump’s hard line on immigration “which runs counter to tech’s well-documented belief that immigrants are often the successful entrepreneurs and engineers who play a crucial role in crafting new technologies.”
  • Government Transparency
    National Security Archive v. CIA, No. No. 12-5201 (D.C. Cir. 2014)
    Allowed CIA to block the fifth volume of a series of books describing the agency’s actions during the 1961 Bay of Pigs invasion on the grounds it would expose the agency’s decision-making process (even though the first four volumes had already been published).
  • Executive Authority
    Much has been written about Judge Kavanaugh’s expansive views of executive authority and his belief that a President should not be subject to civil or criminal proceedings while in office.  Kavanaugh has even gone so far as to question the unanimous Supreme Court ruling in U.S. v Nixon, 418 U.S. 683 (1974).  This is troubling since the willingness to question such a decision raises concerns about whether he is a judicial activist at heart.
  • Guns
    Heller v. District of Columbia, 670 F.3d 1244 (2011)
    Kavanaugh dissented from a ruling upholding DC assault weapons ban.

Footnotes


1 For a detailed biography see Kavanaugh’s Senate Judiciary Committee Questionnaire.

2.  That was then, this is now:

  • Judiciary Committee Chairman Chuck Grassley (R-IA): “In order for the Senate to fulfill its constitutional responsibility of advise and consent, we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a Justice.” [Floor Remarks, 6/15/10]
  • Republican Leader Mitch McConnell (R-KY): “Starting today, both parties will begin the process of carefully reviewing Ms. Kagan’s brief litigation experience as well as her judgment and her career in academia, both as a professor and as an administrator. Fulfilling our duty to advise and consent on a nomination of this office requires a thorough process, not a rush to judgment.” [Floor Remarks, 5/10/10]

3 Michael Kranish, Kavanaugh’s role in Bush-era detainee debate now an issue in his Supreme Court nomination, Washington Post (July 18, 2018); Steve Benen, Bush-era torture becomes key point of contention in Kavanaugh fight, MSNBC.com (July 30, 2018).

4 Issie Lapowsky, Kavanaugh On The Supreme Court Could Spell Trouble For Tech, Wired (July 10, 2018).

5 Derek Hawkings, The Cybersecurity 202: Privacy advocates blast Kavanaugh for government surveillance support, Washington Post (July 11, 2018).

 

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