What the Supreme Court Vacancy Means for the Internet

The country’s highest court is increasingly being called on to make tech-related decisions.

The retirement of Justice Anthony M. Kennedy from the Supreme Court might change the game for environmental protectionsabortion rights and civil rights. But what will it mean for the internet, and issues that matter to techies, like online privacy, immigration and warrantless surveillance?

Justice Kennedy has a reputation as a moderate member of the court’s stalwart conservative wing, but on internet issues he usually voted libertarian, often (but not always) acting to expand online privacy and First Amendment protections. “Without him, the court will have lost one of its leading thinkers on the question of how our evolving constitution can meet the needs of a more advanced society,” Wired wrote last week.

While Kennedy didn’t always please the online civil rights community, many tech lovers will miss him. That’s partly because Kennedy wrote the majority opinion in Packingham v. North Carolina, invalidating state laws that banned people previously convicted of sex offenses from most social media. The internet, Kennedy said, is the preeminent modern means of exercising free expression and thus deserving of First Amendment protections.

In 2014, Kennedy joined with his colleagues in Riley v. California to rule that warrantless search and seizure of arrestees’ cell phone data is unconstitutional. A few years before that, in United States vs. Jones, he agreed that police need a warrant to use GPS to track a car’s movements.

Like the rest of his opinions, Kennedy’s take on new technologies was somewhat unpredictable. Earlier in this term, he was in the minority of a landmark case, Carpenter v. United States, which ruled the government had violated the Fourth Amendment by accessing cell phone tower records without a warrant. Phone location records not only can prove a defendant was in close proximity to a series of robberies, civil rights advocates worried, but can go back in time to place anyone near a church, protest or AA meeting. Nevertheless, Kennedy wrote in his dissent that such information is not meaningfully different from telephone billing records and requiring a warrant for it “places undue restrictions on the lawful and necessary enforcement powers.”

The next Supreme Court will likely have to make even more tech-related decisions, including on cases related to net neutrality, antitrust enforcement and computer searches at the border. Whoever replaces Justice Kennedy could tip the court’s balance.

But which way? Unlike abortion, election finance and immigration, “tech issues aren’t tribal,” says Matthew Schruers, the vice president of law and policy at the CCIA, a tech trade group. In other words, the court’s constantly shifting divisions on tech cases don’t reflect the usual partisan dynamic. So it’s hard to predict how a successor might view such disputes.

Regardless, those who appreciate the rapidly changing nature of technology may end up fondly recollecting Kennedy’s insights. As he wrote in the Packingham ruling, “The Internet’s forces and directions are so new, so protean, and so far-reaching that courts must be conscious that what they say today may be obsolete tomorrow.”