Politics

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."

Protocol | Workplace

Performance reviews suck. Here's how to fix them.

Slack integrations and keywords and AI, oh my!

Time will tell how smart HR technology has the potential to be, or how smart users want it to be.

Image: Christopher T. Fong/Protocol

Arguably nothing elicits more of a collective groan at work than performance review season. Managers hate giving them. Employees theoretically want them, but dread receiving them. It's as clear how much time and effort they take as it is unclear how useful formal performance reviews actually are in measuring and evaluating performance.

It's an arena ripe for disruption.

Keep Reading Show less
Michelle Ma
Michelle Ma (@himichellema) is a reporter at Protocol, where she writes about management, leadership and workplace issues in tech. Previously, she was a news editor of live journalism and special coverage for The Wall Street Journal. Prior to that, she worked as a staff writer at Wirecutter. She can be reached at mma@protocol.com.


Keep Reading Show less
Nasdaq
A technology company reimagining global capital markets and economies.
Protocol | Workplace

This startup will fire unvaxxed workers. Big Tech won’t say the same.

In an industry built for remote work, will companies fire workers who refuse to get vaccinated?

Several big tech companies stopped short of saying whether they would fire workers for not getting vaccinated.

Illustration: simplehappyart via Getty Images

As employers wait for the Department of Labor to issue a new rule requiring employee vaccine mandates, a big question looms: Will companies fire workers who don't comply?

Many of the tech giants won't say. A couple of companies have confirmed that they won't: Both Hewlett Packard Enterprise and Pure Storage said vaccination is not a condition of employment, though it's required to come to the office.

Keep Reading Show less
Allison Levitsky
Allison Levitsky is a reporter at Protocol covering workplace issues in tech. She previously covered big tech companies and the tech workforce for the Silicon Valley Business Journal. Allison grew up in the Bay Area and graduated from UC Berkeley.

With Andrew Bosworth, Facebook just appointed a metaverse CTO

The AR/VR executive isn't just putting a focus on Facebook's hardware efforts, but on a future without the big blue app.

Andrew Bosworth has led Facebook's hardware efforts. As the company's CTO, he's expected to put a major focus on the metaverse.

Photo: Christian Charisius/Getty Images

Facebook is getting ready for the metaverse: The company's decision to replace outgoing CTO Mike "Schrep" Schroepfer with hardware SVP Andrew "Boz" Bosworth is not only a signal that the company is committed to AR and VR for years to come; it also shows that Facebook execs see the metaverse as a foundational technology, with the potential to eventually replace current cash cows like the company's core "big blue" Facebook app.

Bosworth has been with Facebook since 2006 and is among Mark Zuckerberg's closest allies, but he's arguably gotten the most attention for leading the company's AR/VR and consumer hardware efforts.

Keep Reading Show less
Janko Roettgers

Janko Roettgers (@jank0) is a senior reporter at Protocol, reporting on the shifting power dynamics between tech, media, and entertainment, including the impact of new technologies. Previously, Janko was Variety's first-ever technology writer in San Francisco, where he covered big tech and emerging technologies. He has reported for Gigaom, Frankfurter Rundschau, Berliner Zeitung, and ORF, among others. He has written three books on consumer cord-cutting and online music and co-edited an anthology on internet subcultures. He lives with his family in Oakland.

Protocol | Fintech

Here’s everything going wrong at Binance

Binance trades far more crypto than rivals like Coinbase and FTX. Its regulatory challenges and legal issues in the U.S., EU and China loom just as large.

Binance CEO Changpeng Zhao is overseeing a global crypto empire with global problems.

Photo: Akio Kon/Bloomberg via Getty Images

Binance, the largest global crypto exchange, has been hit by a raft of regulatory challenges worldwide that only seem to increase.

It's the biggest example of what worries regulators in crypto: unfettered investor access to a range of digital tokens finance officials have never heard of, without the traditional investor protections of regulated markets.

Keep Reading Show less
Tomio Geron

Tomio Geron ( @tomiogeron) is a San Francisco-based reporter covering fintech. He was previously a reporter and editor at The Wall Street Journal, covering venture capital and startups. Before that, he worked as a staff writer at Forbes, covering social media and venture capital, and also edited the Midas List of top tech investors. He has also worked at newspapers covering crime, courts, health and other topics. He can be reached at tgeron@protocol.com or tgeron@protonmail.com.

Latest Stories