Where the New Supreme Court Justice Stands on Tech and Data Policy
Google’s antitrust process, Twitter and Facebook’s management of disinformation, and fundamental questions about data protection will deeply transform American society. Justice Barrett’s stance on these issues remains a mystery, but her background might offer some clues.
Justice Amy Coney Barrett has been sworn in as Supreme Court Justice of the United States. Her confirmation followed weeks of congressional hearings, as she wrestled with Democratic Members of Congress, questioning her suitability for the role and timing of her nomination.
Barrett has an immaculate conservative track record and her ideological reliability on civil rights issues such as abortion, health care, and guns have made her a darling of the Republican establishment.
But where does the new Supreme Court Justice stand on issues related to emerging technologies? The truth is — nobody really knows. Justice Barrett is what POLITICO coined as an “unknown variable” due to her “limited time on the bench” . A glance at her personal history might offer some clues.
Background
There are two main characteristics that run like a red thread throughout Justice Barrett’s career and previous legal commentary: her Catholic faith and conservative values.
After obtaining a law degree from Notre Dame University, a Catholic research institution, Barrett has spent the majority of her career teaching at her alma mater. Following President Trump’s nomination, Justice Barrett then served three years on the bench of the United States Court of Appeal for the Seventh Circuit.
Barrett shortly worked for Justice Antonin Scalia, a conservative superhero sacrosanct to the GOP. Justice Scalia, an ‘ unlikely defender of technology’, is rumoured to have played a major role in Barrett’s formulation of her legal philosophy to the extent that Barrett publicly aligned herself with his textualist and originalist philosophy.
So where will she stand on issues relating to emerging technologies?
Free speech and bias
In light of the ongoing elections, the most timely issue is with no doubt managing misinformation on social media platforms. As a staunch proponent of the First Amendment, Barrett would most likely side with Trump to regulate how social media firms moderate content and fight the perceived selective censorship of conservative voices.
Republican policymakers have developed a borderline obsession that social media platforms are censoring conservative voices ( though current data provides little evidence in support of this argument). Twitter has launched an offensive against misinformation, flagging content (including from Trump) it deems misleading, disputed or unverified. An infuriated Trump has since then made an executive order to limit the notorious “Section 230”, which “protects tech companies from lawsuits over content generated by users”. To Trump, Section 230 is not only a protecting shield for tech companies, but also a sword that they can use to limit conservative influence. Trump argues that “the platforms are the 21st century equivalent of public squares”, and claims to act on behalf of citizens’ First Amendment rights. What he is really doing though is threaten social media platforms to give his content preferential treatment.
It is likely that Justice Barrett would support Trump’s executive order based on the logic of free speech. As a “textualist” or “originalist”, Justice Barrett can be expected to vote in favour of provisions supporting the First Amendment, that is the right to freedom of speech — irrespective of whether such facts may be entirely true or inaccurate. This is not because Barrett would be in favour of spreading political misinformation of course. Rather, it is to protect religious thought and facts which might otherwise be flagged as being untrue. Take for instance a fact-checking algorithm that would flag creationism as ‘disputed’ or even ‘unverified’. Imagine the outrage it would cause among Republicans. Without Section 230 the Trump administration could more easily take action against social media platforms flagging conservative content.
Big Tech Antitrust Regulations
Last week the Department of Justice announced that it started a lawsuit against Google for allegedly violating antitrust laws. Barrett’s alignment with Justice Scalia suggests, however, that she might take a soft stance towards tech companies.
The issue of how to regulate big tech firms is a particularly tricky one, causing disagreements across party lines. On the one hand Republicans can’t let go of the idea that the market will regulate itself. Since the newly perceived censorship against conservative voices, Republicans have started taking out the heavy artillery and there is even agreement (at least in principle) with some of their Democratic counterparts on a necessity to regulate the tech industry.
If we follow Barrett’s claim that her philosophy = Scalia, however, chances are low that Barrett will be in favour of strong government intervention. To Scalia:
“a monopolist should be given broad leeway to innovate aggressively, and should not be condemned under antitrust law merely for acting in a manner that is consistent with its legitimate business interests.”
The bottom line of this philosophy is: as long as these companies don’t violate specific laws, they have wide room for manoeuvre to follow their business interests. It would thus seem unlikely that Justice Barrett would take serious action against tech firms not to mention break them up.
Data protection and privacy
Finally, data protection has become another issue of central concern, particularly when it comes to national security. Justice Barrett is likely going to pursue a libertarian approach but will grant more authority to Trump when it comes to national security.
With technological developments relying on vast amounts of data there is no doubt that there will be a number of seminal decisions to be made over how to handle it and for what purpose. As in similar cases, Justice Barrett hasn’t made explicit comments or judgments on cases surrounding the use of personal data. However, similar to Scalia who was largely considered pro-privacy, Barrett has in the past espoused a significantly more libertarian approach in protecting citizens’ Fourth Amendment rights. In U.S. v. Terry, Barrett explained that DEA officers who were given access to a suspect’s home by a third person who did not live there were acting unlawfully. Another case in which police were given a “tip that boys were playing with guns” was also not seen as sufficient evidence to stop a car. Whilst these cases are not specifically within the domain of data protection, there is reason to believe that Barrett’s strict interpretation of the Fourth Amendment could be of help when it comes to protecting individual data privacy. With the widespread use of personal data in algorithms deployed across society, it is undoubtedly an issue of crucial importance.
The caveat, however, could be if cases would be justified in the interest of national security — which in the past decade has been subject of (very) broad interpretation . The Trump administration has repeatedly demanded access to devices and data. With data becoming increasingly a topic of national security, Barrett might well see justification to expand the powers of the US President at the expense of data protection and allow for stronger executive action.
Conclusion
Barrett’s confirmation will have a substantial impact on tech policy. So what will be the new SCOTUS Justice stance on emerging technologies? Whilst Justice Barrett’s stance on tech policy remains uncertain, her background and philosophy suggests that she will likely legislate in line with conservative party policies following a pro-Trump approach.
For the tech industry, Barrett’s confirmation is mostly good news. It is unlikely that Barrett will favour strong government intervention against big tech firms — so long as they will manage to dispel the notion that conservatives are censored. Similarly an overwhelmingly conservative SCOTUS will provide a more favourable regulatory and tax environment for tech firms.
For me, you and our American readers across the pond the outlook might be a little bit less optimistic. Encroaching upon the limits of Section 230 will either force social media companies to take decisive action against misinformation (great!) stop moderating at all, leading to a sharp increase in fake news (not great), or worse, becoming instrumentalised by the US President (oh god…). By a similar token, a lack of action against alleged anti-competitive practices will deprive citizens of better services, deprive competition, and slow down innovation. Finally, whilst Barrett is in principle pro-privacy, the possibility of reducing data protection in cases of ‘national security’ (a topic which the US has notoriously overblown to the extreme) may present a threat to individual liberties and privacy.
And that’s the way the Democratic cookie crumbles. Irrespective of whether the outcome of next week’s election will be red or blue, the Supreme Court’s conservative majority is now set in concrete. This will make it unlikely to pass meaningful reforms in a tech industry which is in dire need of reform.
