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What Amy Coney Barrett on the Supreme Court would mean for the future of tech

Topics at the heart of tech policy don't map easily along partisan lines, so any business benefits of an extra Repulican justice come with uncertainty.

What Amy Coney Barrett on the Supreme Court would mean for the future of tech

Upon first glance, it would seem like Amy Coney Barrett's arrival would bode well for all businesses, tech or otherwise.

Photo: Mark Wilson/Getty Images

Having another Republican justice on the Supreme Court might be good for most businesses. For tech, it's more complicated.

Over the next decade, the Supreme Court will likely be asked to weigh in on issues that shape the future of the tech industry, including government surveillance, U.S. privacy laws, intellectual property rights, antitrust and content moderation. Its decisions could determine how far the government is allowed to reach into companies like Facebook and Google and what the constitution says about digital rights.

If President Trump successfully nominates Amy Coney Barrett to the high court, he would be locking in a bulletproof conservative majority of five justices to make those decisions, ushering in the most dramatic ideological tilt to the court in the past 50 years.

Upon first glance, it would seem like Barrett's arrival would bode well for all businesses, tech or otherwise. A conservative-leaning Supreme Court would be likelier to eschew aggressive regulatory efforts and side with tech companies on issues like taxes.

"I expect this pick to be very focused on so-called 'corporate rights,'" said Gigi Sohn, a former FCC counselor in the Obama administration.

But many of the topics at the heart of tech policy — including privacy, antitrust, Section 230 and intellectual property — do not map easily along partisan lines, and experts said tech companies should brace for some decisions that they won't like.

"On technology, particularly in recent years, the court in any given case has had strange bedfellows," said Ed McAndrew, a partner with DLA Piper who worked on cybercrime with the Department of Justice for 10 years. The late Justice Ruth Bater Ginsburg, for instance, positioned herself against consumer advocates on IP rights, and Justice Brett Kavanaugh sided with the liberal justices in the antitrust case Apple v. Pepper.

"The implications for those issues — net neutrality, antitrust, cyber — are less clear-cut than in other areas because there are cross-currents that may pull a more conservative court in [a] different direction," said Pantelis Michalopoulos, a partner with Steptoe & Johnson.

A short track record

There's an extremely small body of opinions from Barrett to examine and extrapolate from. She has only been on the U.S. Court of Appeals for the Seventh Circuit since 2017 and has spent most of that time on relatively uncontroversial cases with little relevance to the tech industry. She has a prolific history of academic scholarship, some of which is related to issues like faith and state's rights, but appears to have stayed out of any of the core areas of jurisprudence that tech cares about, according to Corbin Barthold, the internet policy counsel with TechFreedom, a tech-focused think tank.

Barthold has been poring over the records of the forerunners for Supreme Court nomination in recent weeks and so far has found that none of them has weighed in at length on tech issues. That puts them at odds with former nominees — such as the most recent, Kavanaugh, who, prior to joining the Supreme Court, issued a lengthy opinion arguing that the Federal Communications Commission was not authorized to impose net neutrality regulations.

Several experts said they were paying attention to see if Barrett would be more of a "law and order" conservative or a libertarian on issues like government surveillance and data privacy. Chief Justice John Roberts, for instance, sided with the liberal justices in the landmark case Carpenter vs. U.S., which found the government violated the Fourth Amendment by accessing cell phone location data without a search warrant. The next several years will almost certainly bring more cases about how and why the government can collect certain kinds of data, and many of those could hinge on the leanings of the new judge.

"The Supreme Court discussion that we're now having, I think will launch us into a very broad discussion of privacy rights and where they exist within the Constitution," Sen. Maria Cantwell, the top Democrat on the Senate Commerce Committee, said during a hearing this week.

The first big tests

Still, we might not have to wait long before we get an indication of how Barrett might think.

She's unlikely to weigh in on Google vs. Oracle, one of the tech industry's most important copyright cases, due to be heard by the Supreme Court in early October. But in late November, the court is set to hear oral arguments for Van Buren v. United States, a case revolving around the main U.S. cybercrime law, and it could be the first major tech case in which Barrett participates. Her opinion would be revealing, because it's extremely unclear where she could come down on the question of what constitutes a federal hacking crime.

Further out, all eyes remain on Section 230, a current focus of the Trump administration's ire. Right now, lower courts are fairly unanimous in their interpretation that 230 offers broad immunity to tech platforms for what their users post, but at some point, the Supreme Court will likely be asked to weigh in on the First Amendment concerns around reforming a law that protects online speech.

For instance, if Trump wins in November and his administration continues to pursue his Section 230 executive order, the Supreme Court will likely be asked to weigh in. Or if Congress passes a reform law, it's possible it will end up before the high court. Either way, the new justice's opinions about the breadth of the First Amendment will become very important, said Berin Szoka, the president and founder of TechFreedom.

But at this point, it's too difficult to assess where a conservative judge would come down on Section 230. They would be facing enormous political headwinds from Trump and Republican allies who want to see Section 230 limited because they claim it enables the censorship of right-wing speech. But it's an issue deeply mired in free speech concerns, which conservative often favor.

"[Republicans] have … tended to favor corporate free speech rights, which would seem to bode well for tech companies, though again it is Republicans in Congress driving much of the effort to restrict the freedom of tech companies to decide what goes out on their platforms," said Mark Lemley, director of the Stanford Law School Program in Law, Science and Technology.

A wild card for now

There are a number of important tech cases bubbling up in lower courts that could make their way to the Supreme Court. The Department of Justice asked the courts to block California's net neutrality law; the broadband industry has sued to declare a Maine privacy law unconstitutional; a Section 230 case, Malwarebytes Inc. vs. Enigma Software Group USA, LLC, was recently petitioned to the Supreme Court; and FTC vs. Qualcomm could be petitioned to the high court after the FTC asked an appeals court to reconsider its decision.

It's clear that Barrett will be a reliable vote on social issues ranging from abortion to LGBTQ+ rights. But so far, she's considered a wild card on every issue affecting tech — not least because of the way that tech issues such as online speech have become deeply politicized in recent years.

"Putting aside the service they provide or product they sell, [tech companies are] businesses, and a Republican-appointed justice is presumably going to be more favorable across the board," said McAndrew.

"But I think where we see the potential change is with these proposals to use regulation as a cudgel to advance political goals, like speech regulation," he said. "If we go from the traditional Republican view of limiting regulations to the view of 'we can weaponize certain regulations to advance other policy goals,' then we're in a dangerous place."

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