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Nominee's past rulings give hint of tech views

Samuel Alito takes limited view of copyright, which could bode well for tech firms. He's also been permissive on e-surveillance.

As a federal judge at the 3rd U.S. Circuit Court of Appeals in Philadelphia, Samuel Alito has accumulated a lengthy record of written decisions that hint at how he would rule in technology-related cases that come before the Supreme Court.

President Bush nominated Alito for the court on Monday, to succeed retiring Justice Sandra Day O'Connor, widely viewed as a swing vote. Democratic politicians have already promised stiff opposition, with at least one senator saying that a filibuster to block debate is possible.

Alito's confirmation hearings are certain to focus on hot-button constitutional issues such as his views on abortion, affirmative action and gun rights. But a few cases show that the broadly conservative philosophy of Alito, 55, means he takes a limited view of copyright, which could bode well for tech companies, as well as a permissive approach toward electronic surveillance by police.

The Supreme Court has been delving into an increasing number of technology-related cases, with the Grokster file-swapping ruling and a cable-modem case both decided in June. For the term that begins this fall, the court is scheduled to decide whether to hear the eBay v. MercExchange patent-infringement lawsuit and another case dealing with printer components and antitrust charges.

Alito was called a "highly qualified, outstanding jurist" by Attorney General Alberto Gonzales on Monday. House Minority Leader Nancy Pelosi, on the other hand, accused Bush of bowing to pressure from the "radical" wing of the Republican Party.

Alito's tech credentials

A 2002 case before the 3rd Circuit Court dealt with a police search of a suspect's home computer for traces of illegal pornography. Alito's dissent shows that he has a better-than-average understanding of how operating systems work. An excerpt follows:

"Since the clip had been shown repeatedly on the computer, it is probable--not certain, but probable--that it had been downloaded to the computer's hard drive. In that event, it was probable--again, not certain, but probable--that either the clip or traces of it remained, even if the defendant had attempted to delete it. Whether a search of the computer's hard drive for this clip would have necessarily resulted in the discovery of any of the computer-related items of evidence that the government intended to introduce at the defendant's trial is not disclosed by the record, as far as I am aware."

Technology companies are likely to find Alito an appealing nominee because for the most part he's "business-friendly," said David Bernstein, a law professor at George Mason University. "He's generally skeptical of open-ended liability, and seems to be inclined to strictly construe contracts, including contracts that dictate where and under what law a dispute will be resolved," Bernstein said in an e-mail interview.

Alito's strict view on the kinds of inventions that merit copyright protection should also be a comfort to high-tech businesses, said William Patry, a partner at Thelen Reid & Priest and author of The Patry Copyright Blog. Alito demonstrated this strict approach in 2004 when he denied Southco, a manufacturer of screws and industrial fasteners, copyright protection for its part numbers. Alito said the part numbers, which Southco alleged that its rival Kanebridge copied, lacked the originality and creativity required for copyright protection.

"You probably want a judge that is more circumspect about who gets property rights," Patry said. "The technology industry is probably better served by someone more circumspect if you believe the industry thrives on innovation and not on monopolies."

Alito's judicial philosophy seems nuanced and not doctrinaire. In March 2002, he sided with Nextel and against a Pennsylvania township that tried to block the installation of a cell phone tower by denying a zoning variance. That violated federal law, Alito said.

But in another case involving a Nextel affiliate and a second Pennsylvania township, Alito sided with the municipality. Nextel didn't follow proper procedures because it "never filed with the township a building permit application or any" similar request, Alito wrote.

Views on surveillance
When it comes to issues of privacy and technology, Alito has been known to align himself with law enforcement. In a case decided last year, Alito ruled that the FBI did not need a warrant to outfit the hotel suite of a boxing official with a hidden audio recorder and remotely controlled video camera that could swivel 360 degrees. The devices were activated when a police informant was also present in the room of the official, who was suspected of taking bribes.

Alito's fellow Judge Theodore McKee, a Clinton appointee, dissented on the grounds that advances in surveillance technology would eviscerate the privacy principles found in the Fourth Amendment's prohibition of "unreasonable searches."

"Given the evolving sophistication of technology, it is increasingly imperative that the fundamental liberties guaranteed under the Fourth Amendment not be eroded by the warrantless use of devices that allow the government to see through curtains, walls and doors," McKee wrote. "To the extent the Fourth Amendment has any vitality in an era of increasingly sophisticated electronic eavesdropping, it surely protects the privacy of someone in the intimacy of a hotel suite from the potential of warrantless 24-hour video surveillance."

Hot-button cases

Judge Alito's Senate confirmation hearing likely will dwell on constitutional issues not related to technology. Those cases include:

• Planned Parenthood v. Casey (1991): Alito said precedent did not permit him to throw out a state law saying married women generally must notify their husbands before an abortion.

• Doe v. Groody (2004): A female officer searched a woman and her 10-year-old daughter in a methamphetamine raid, asking them to disrobe. Alito said the search warrant covered occupants and search was permissible.

• United States v. Rybar (1996): A federal law cited interstate commerce as justification for restricting machine guns. Alito argued that no evidence showed that private ownership affected such commerce and that Congress should not be able to restrict ownership along these lines.

On behalf of a 2-1 majority, Alito carefully avoided sweeping pronouncements of the potential omnipotence of futuristic spy gadgets. Instead, his logic was simple: because the informant consented to the recording, it could be used as evidence. His decision turned on the so-called one-party consent rule, "the well-established principle that a person has no legitimate expectation of privacy in conversations with a person who consents to the recording of the conversations," Alito said.

In another case decided in 2002 by the 3rd Circuit Court, police in Pennsylvania acted on a six-month-old tip that a high school teacher was viewing illegal adult pornography on the Internet. They obtained a search warrant for the teacher's home and found child pornography on his computer's hard drive.

In an opinion written by Judge Maryanne Barry, another Clinton appointee, the 2-1 majority said the search warrant was invalid because the tip was "stale" and based on a dubious source. Also, they said, police had no probable cause to look for any kind of pornography, and investigators should not go on a fishing expedition through a suspect's hard drive just to find some sort of incriminating files.

Alito dissented. "The previously-noted incidents alleged in the affidavit showed that the defendant had a sexual interest in minors and that he had used sexual materials on several occasions as part of his course of conduct," he wrote. "All of this information tends to support a finding of probable cause."

Both cases symbolize the long-running clash of legal philosophies--individual rights pitted against police power--that has often found Alito siding with law enforcement. A former prosecutor, Alito worked for the Justice Department between 1977 and 1989.

Alito, however, has stopped short of giving law enforcement carte blanche. He seems, for instance, to be willing to let police officers be sued when they're accused of making an unprovoked violent attack during an arrest. In a 1995 case, Alito wrote that a trial judge should have let a jury make more decisions in a lawsuit that Harry Bodine filed against some Delaware State Troopers.

"If the troopers are found to have entered the Bodine residence illegally, they should be held liable for the harm proximately caused by the illegal entry," Alito wrote. "Similarly, if the troopers are found to have used unlawful force, they should be held liable for the harm proximately caused by this use of force."

On free speech topics, the First Amendment Center said in a report, Alito is "fairly strong." Alito wrote the opinion in a 2001 case that said a school's "anti-harassment" policy amounted to an unconstitutional speech code: "There is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive."

That permissive attitude toward free speech could prove significant. A crucial case involving Internet pornography has already appeared before the Supreme Court once, and the issue is likely to return in the next year or two. In the aforementioned case, the court decided 5-4 to uphold an injunction barring prosecutors from enforcing the Child Online Protection Act.

Alito's views toward free speech seem to align him most closely with Justice Clarence Thomas, who broke from his conservative colleagues and sided with the ACLU and against the Justice Department in that lawsuit. Thomas also joined liberals on the court in striking down a law outlawing "morphed" child pornography and a law restricting anonymous speech.

CNET News.com's Alorie Gilbert contributed to this report.

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