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What Trump's pick of Kavanaugh for Supreme Court means for tech

The newly nominated justice could decide on issues like net neutrality and online privacy in the years to come.


Judge Brett Kavanaugh was nominated by President Donald Trump for the US Supreme Court.

Mandel Ngan/AFP/Getty Images

President Trump has made his Supreme Court justice pick: Judge Brett Kavanaugh.

The commander-in-chief announced on Twitter last week that he would name a nominee to serve on the highest federal court in the United States at 6 p.m. PT Monday night. The choice comes about two weeks after Supreme Court Justice Anthony Kennedy announced he would retire by July 31. (Check out out the full coverage at our sister site

Trump's choice, if confirmed by the Senate, will have a say on landmark cases for years to come. Supreme Court justices make rulings that affect everything from education to marriage equality to free speech. Tech has increasingly appeared on the court's docket. In 2018, the justices ruled on cases that affected online shopping and phone location data history privacy.  

In its next session, which starts in October, the Supreme Court is expected to hear cases on tech issues again, including an antitrust argument over Apple's App Store.

Kavanaugh, 53, has served as a US Court of Appeals judge for the DC Circuit for 12 years, providing opinions on key tech issues like net neutrality and government surveillance.

The potential Supreme Court justice sided against net neutrality in a 2017 dissent, arguing that it was "one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States."

Kavanaugh wrote that net neutrality was unlawful because it prevented internet service providers from controlling what type of content they provide to people, violating a company's First Amendment rights. He compared it to cable providers being able to control what customers could watch.

Sen. Chuck Schumer, a Democrat from New York, called Kavanaugh out for his stance on net neutrality in a tweet on July 3.

"Kavanaugh frequently sides with powerful interests rather than defending the rights of all Americans like when he argued that the FCC's #NetNeutrality rule benefiting millions of consumers was unconstitutional," the senator tweeted.  

The circuit court judge has also argued in support of the NSA's massive surveillance program.

In 2015, the US Court of Appeals declined to hear a case on the NSA's phone metadata collection, first unveiled by whistleblower Edward Snowden.

In his opinion, Kavanaugh argued that the NSA's surveillance program was consistent with the Fourth Amendment, even without a warrant. He said that data requests from the government were reasonable for national security.

"In my view, that critical national security need outweighs the impact on privacy occasioned by this program," Kavanaugh wrote.

He cited the "third-party doctrine" established in 1979, which allows law enforcement to obtain data on a person without a warrant if they obtained it from a third party.

Investigators in Michigan used the doctrine to gather location data history without a warrant on Timothy Carpenter by acquiring it from his phone provider, MetroPCS. The Supreme Court recently ruled against the third-party doctrine for location history data.

Kavanaugh has also ruled against the Environmental Protection Agency, arguing to limit its authority. In a 2014 dissent, the judge argued that the EPA needed to consider costs when regulating power plants.

His nomination comes at a "critical moment for digital rights," Corynne McSherry, the Electronic Frontier Foundation's legal director, said in a statement. 

"Judge Kavanaugh's past approaches to net neutrality and defense of the NSA's illegal collection of Americans' call records, which was based on a justification that the Supreme Court has rightly questioned in Carpenter, are concerning," McSherry said. "We hope the Senate will press him to articulate his views on these crucial issues." 

If appointed, Kavanaugh would replace Kennedy, a judge he had once clerked for. He's a Yale Law School graduate who  worked in the Solicitor General's office during the Bush administration.

First published July 9, 6:06 p.m. PT
Update, July 10 at 11:53 a.m. PT:
Adds statement from the EFF.

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