Senator Says Privacy Should Be Priority for High Court Pick

Senators should grill the next Supreme Court nominee with tough questions on data privacy issues—but not until after the November elections, a Democratic senator told Bloomberg Law.

Sen. Ron Wyden (D-Ore.), one of the more outspoken lawmakers on privacy and civil liberties, said June 28 that “tech and digital literacy” skills are crucial for whoever succeeds retiring Justice Anthony Kennedy. Future cases are likely to reflect a “cross-section of privacy and technology concerns” and next Supreme Court justice must not turn back the clock” on U.S. citizens’ privacy rights, Wyden said.

Wyden reflected widespread Democratic calls for a delay in confirmation hearings after what he called an election-year precedent set two years ago, when Senate Majority Leader Mitch McConnell (R-Ky.) refused to call a hearing for President Obama’s high court pick.

President Trump’s “nominee should get the Merrick Garland treatment,” Wyden said.

Still, Trump’s eventual pick is likely to grapple with privacy issues such as law enforcement access to stored data, and plaintiffs’ rights to pursue claims for data breaches by companies, both of which have penetrated federal appeals courts for years.

Kennedy’s Supreme Court record was less known for privacy and technology issues than being the swing vote in gay marriage, abortion, and federal sentencing cases. Such technology issues, including location tracking,” didn’t really resonate with” Kennedy, Wyden said.

In more recent Supreme Court privacy decisions, including 2014’sRiley v. California and June 22’s Carpenter v. United States, Kennedy joined a unanimous decision or fell into the dissenting camp.

Does Tech Background Help?

The nominee likely will need to get up to speed on rapidly-evolving privacy, technology or cybersecurity issues—including those related to “drones, DNA, and facial recognition technology,” said Paul Rosenzweig, senior fellow at the R Street Institute where he focuses on privacy and security issues.

Justices to date have largely approached those issues “flying by the seat of their pants,” Rosenzweig, former assistant secretary for policy at the Department of Homeland Security, told Bloomberg Law.

Some legal scholars, though, said the new justice and his or her colleagues can educated themselves quickly on the quick-shifting privacy landscape.

Supreme Court justices don’t “need tech backgrounds,” Orin Kerr, professor at the University of Southern California Gould School of Law where he focuses on criminal procedure and computer crime law, told Bloomberg Law.

“They need to be open to learning about new technology, and it helps if they are interested in new technology. But the justices are generalists in everything,” said Kerr, who has argued cases before the Supreme Court and was appointed by Chief Justice John Roberts to multiple advisory committees.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bloomberglaw.com

To contact the editor responsible for this story: David Mark at dmark@bloomberglaw.com