Intellectual property (IP) theft has taken an increasingly prominent place in the news as various entities such as Huawei, foreign governments, and tech employees have been accused or charged with stealing trade secrets. Trade secret misappropriation lawsuits are on the rise, and there is a large amount of money at stake in such litigation.
In order to provide the greatest added value to this committee's consideration of the Kavanaugh nomination, this letter will focus on an issue which has not gotten a lot of attention—specifically, what Judge Kavanaugh's confirmation to the Supreme Court would mean for America's tech industry. To answer that question, we look to the areas of federal law that will be most impactful on the future of that industry, including the First Amendment, antitrust law, and administrative law.
Facebook is just like the pre-1984 AT&T monopoly, says the New York Times in a June 5 editorial. Thus it might be time for the government to “break away some of its components and chop it down to size,” suggests the Times, in order to “unleash a wave of competition and innovation” that would benefit consumers and the economy like the dissolution of the telephone monopoly. The Times further suggests that cutting Facebook down to size would bolster user privacy, though it doesn’t say much about how this might happen. That's just one of several false assumptions and common misconceptions in the editorial.
We welcome the Supreme Court's decision dismissing United States v. Microsoft in light of Congress's passage of the CLOUD Act (Clarifying Lawful Overseas Use of Data). The case, stemming from Microsoft's challenge to a federal search warrant compelling it to turn over the contents of emails stored on a server abroad, was one of the Court's most closely watched this term.
By providing clear guidelines, the CLOUD Act takes several steps to avoid international conflicts of law and protect the privacy of citizens across the globe while prioritizing the fight against international crime and terrorism. Because it facilitates U.S. entry into bilateral agreements with other governments, the proposed legislation would encourage government-to-government cooperation.
In a November 20 letter, Representatives Emanuel Cleaver II (D-MO) and Bonnie Watson Coleman (D-NJ) write that "As AI is leading to autonomy … issues of ethics, safety, racial and gender bias, knowledge sharing, and privacy are at a critical point." They warn that "If these issues go unchecked Congress will be left with few options and will demand increased regulations to address these issues."
The Committee for Justice (CFJ) joined the Center for Democracy and Technology (CDT), the Electronic Frontier Foundation (EFF), Media Alliance, and Public Participation Project (PPP) in filing an amicus brief in United States v. Glassdoor in support of the rights of anonymous online speakers against involuntary unmasking, as well as the rights of companies against government subpoenas that compel disclosure of users’ identities.
The nine most recent nominees can be counted on to take a jurisprudentially conservative approach to the law – that is, an objective, textualist interpretation of the Constitution, statutes, and regulations – regardless of whether the outcome pleases various political constituencies.
The Committee for Justice joined with a group of a dozen conservative organizations and libertarian policy leaders -- who believe that the Constitution's protection of private property extends with undiminished force to intellectual property -- in filing an amicus brief in support of the petitioner in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC.