Black box: Merrick Garland an unknown quantity on tech issues

Important tech questions about privacy and security, patents and more are moving toward the US Supreme Court. President Obama's nominee hasn't had much to say about any of that.

Laura Hautala
Laura Hautala
Laura Hautala
Laura Hautala Former Senior Writer
Laura wrote about e-commerce and Amazon, and she occasionally covered cool science topics. Previously, she broke down cybersecurity and privacy issues for CNET readers. Laura is based in Tacoma, Washington, and was into sourdough before the pandemic.
Expertise E-commerce, Amazon, earned wage access, online marketplaces, direct to consumer, unions, labor and employment, supply chain, cybersecurity, privacy, stalkerware, hacking. Credentials 2022 Eddie Award for a single article in consumer technology
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President Barack Obama introduces Merrick Garland, chief judge for the US Court of Appeals for the District of Columbia Circuit, right, as his nominee to replace the late Antonin Scalia on the US Supreme Court.

Ron Sachs, CNP / AdMedia / Corbis

President Barack Obama's nominee for the US Supreme Court, if approved, would have the chance to vote on some of the most important issues facing the technology industry in years.

Does Silicon Valley, then, have a friend in Merrick Garland? It's hard to know.

The high court announced Monday that it will decide the fate of a five-year patent war between the two largest phone makers, Samsung and Apple. There's also the possibility that a case in a federal court in California between Apple and the FBI could wind its way up to the Supreme Court, requiring the nine justices to weigh in on the battle over government backdoors into encrypted data.

Those are currently among the most important cases affecting the tech industry, which is why Garland's opinions matter. The problem is we know little from his background that could indicate what decisions he might make.

Based on an analysis of his public speeches and previous decisions, Garland appears to be a moderate who balances the government's rights with those of the people -- and who has been inclined to rule against businesses when they're challenged by individuals. But that doesn't mean Silicon Valley can count him as an ally. Justices on the Supreme Court have a history of shifting from perceived camps.

"Once someone gets on there and they have a lifetime appointment, I just don't know that you can ever really know what they're going to do," said Elizabeth Pipkin, a lawyer in Silicon Valley.

Legal questions about tech touch on the devices that have become central to our lives and identities. We now carry phones that contain everything from family photos to our financial records to the number of steps we take each day. Because they hold so much information, these devices have become the center of debates about data privacy.

Technology has also created some of the most successful and profitable companies in the world, which are now fighting among themselves over patent and copyright issues. Case in point: Apple and Samsung are battling over the fundamental patents defining the look and feel of their rival phones. The nation's highest court on Monday agreed to review the case, the first time it has looked at a design patent case since the 1800s.

If Garland is to take a seat at the country's highest court, his opinions and views on the Internet could affect popular gadgets and services for decades.

A background in terrorism law

In the face of sworn opposition from Senate Republicans to any nomination by President Obama, Garland has been described as a strategic choice. His background at the Department of Justice during the Clinton administration and as a judge who has written rafts of sober, technical appellate decisions qualifies him as a moderate in many people's eyes.

Garland and White House representatives didn't respond to requests for an interview about where he stands on tech's biggest debates. But it's an area where Garland shows moderate tendencies.

On the one hand, Garland has a history of ruling in favor of law enforcement in Fourth Amendment challenges to warrantless searches and arrests. On the other hand, he's made significant rulings in favor of government transparency, siding with the ACLU in its quest to obtain the CIA's drone records in 2013.

What's more, the former prosecutor has a lot of experience dealing with terrorism. Garland investigated the convicted terrorist Ted Kaczynski while working for the Justice Department, and he saw the aftermath of the Oklahoma City bombing first-hand while investigating that attack's perpetrator, Timothy McVeigh. He also ruled twice as an appellate judge to allow lawsuits against foreign terrorists to be heard on US soil.

Finally, he signed onto an opinion at the dawn of the war on terror in 2003 that would have prevented US courts from hearing habeas corpus petitions from prisoners at Guantanamo Bay. (The US Supreme Court overruled that decision.)

Whether that would affect his opinion in the Apple-FBI conflict -- which centers on the Justice Department's efforts to break into the encrypted iPhone of a terrorist -- is an open question. The case hasn't yet been brought to the Supreme Court for consideration, and justices will have the final say on whether they even decide the matter. But separate federal courts have already ruled differently on the issue, giving it the characteristics of a national question in need of a high court answer.

Even so, "it's really hard to generalize" about how a former prosecutor would rule from the Supreme Court, Pipkin said. As a lawyer, she has been forced to balance civil liberties and security in the age of terrorism. One of her clients, Stanford graduate student Rahinah Ibrahim, was put onto the no-fly list due to a clerical error, and Pipkin fought through several layers of government secrecy to reveal the mistake.

His history on privacy

Jim Spertus, a lawyer in Los Angeles, argued and won a case about terrorism in front of Judge Garland in 2009. As a result, his client was allowed to sue the government of Iran for the murder of his grandfather through Hezbollah agents. But the issue was decided on seemingly minute aspects of international law, not on big privacy questions.

"The question of how Judge Garland would rule on something like [the Apple-FBI case] is a fascinating question," Spertus said. But "the answer is not related to his terrorism cases as much as it is as his privacy cases."

That said, Garland's history of ruling in favor of warrantless police searches and arrests doesn't speak to the Apple-FBI conflict, according to Alan Butler, a legal specialist for civil liberties advocacy group EPIC. That's because Apple is asking the court to consider not just the privacy rights of one iPhone owner, but those of all iPhone owners, he said.

And this may all be for naught. Aside from the fact that Garland has a narrow chance of making it onto the court, guessing how someone might view each specific issue isn't the best way to choose a US Supreme Court justice, Spertus said.

"We can get very caught up in how they'll rule in this or that case," he added. "Ultimately what we want to know is that they are someone who followed the law and has shown kindness to others in their career."

Garland said he learned from 2nd Circuit Court of Appeals Judge Henry Friendly, for whom he clerked, that it wasn't right to make legal decisions based on your political beliefs. At a videotaped panel on Friendly in 2014, Garland told the audience, "This idea that 'law is just politics by another name' is just not true."