Notice & Comment

Gorsuch’s Tech Law Record Raises Concerns, by Mark Grabowski

Editor’s Note: Professor Grabowski has written a longer essay on this piece in the Yale Journal on Regulation Bulletin. You can access it here!

Cell phone privacynetwork neutrality and encryption are some of the many tech-related issues that Neil Gorsuch could rule on if he’s successfully appointed to the U.S. Supreme Court.

Gorsuch “needs to get tech,” writes Wired‘s Issie Lapowsky. Kate Tummarello, of the Electronic Frontier Foundation, agrees: “If confirmed … Gorsuch … will be in a position to make crucial decisions affecting our basic rights to privacy, free expression, and innovation.” But a review of Gorsuch’s record raises concerns about how he might apply the Constitution to 21st century technologies. Therefore, the U.S. Senate should give the Supreme Court nominee a 21st Century litmus test when it holds hearings beginning today, I argue in my forthcoming Yale Journal on Regulation Bulletin article.

Gorsuch is set to succeed the late Justice Antonin Scalia, who was a strong “defender of technology.” In fact, he was widely regarded as a “hero” by tech and legal experts, who cite his “pro-technology” decisions on cases providing First Amendment rights for video gamesprivacy protections for new technologies, and regulations for network neutrality.

“If there was any force in the forward-march of modern history that could consider Scalia a standard-bearer, it was technology … over and over again, he got it right,” wrote Mic’s senior technology writer Jack Smith IV.

Although Gorsuch has been dubbed “Scalia 2.0,” his record as a Tenth Circuit judge indicates he may actually be a downgrade when it comes to technology law. The good news is: like Scalia, Gorsuch appears to be a strong defender of free speech, including online speech. But, in contrast to Scalia, Gorsuch has been inconsistent in defending digital privacy rights. In addition, Gorsuch’s support of net neutrality isn’t guaranteed. He “may rule to strike down net neutrality regulations,” predicts Richard Stiennon, chief strategy officer at Blancco Technology Group.

Gorsuch could even be the deciding factor on net neutrality and other important tech issues. “As we have seen with critical 5-4 decisions applying constitutional doctrine to changes in technology over the years … each and every justice on the bench matters,” writes Lisa Hayes, general counsel for the Center for Democracy & Technology.

As it is, the high court already struggles with such cases and is often mocked for being behind the times, as I detailed in a 2011 article published in the Journal of Law, Technology & Internet. For example, many of the justices do not even use email. “The justices are not necessarily the most technologically sophisticated people,” Justice Elena Kagan admitted. Without a tech savvy new justice who appreciates how the average American uses computers, smart phones and social media, the court risks taking a step backwards.

Given that the court will increasingly be called upon to make important judgments that relate to technology, the Senate should carefully vet Gorsuch’s tech savviness and legal philosophy.

As Lapowsky noted, “While liberals [focus] on such contentious issues as women’s reproductive rights and environmental protections, Gorsuch will also face cases that demand a solid command of the complex issues digital technology raises, from copyright and privacy to intellectual property rights and data storage … these cases [will] have far-reaching implications for the tech industry and users of tech alike—which is to say pretty much everyone.”

Mark Grabowski is a lawyer and associate professor of communications at Adelphi University in Long Island, where he teaches Internet law. He also is a nationally-syndicated columnist for the Washington Examiner. Grabowski won the 2015 James Madison Prize for Outstanding Research in First Amendment Studies. For more information, visit Twitter: @ProfGrabowski

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