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.
The hearing will likely last four days, with the focus on Judge Kavanaugh's opening statement and the exchanges between him and Judiciary Committee members. We encourage those members to ask Kavanaugh questions which will shine light on his judicial philosophy, rather than asking him how we will rule on specific cases or issues—questions he cannot responsibly answer.
Judge Kavanaugh will be confirmed because moderate Republican and Democratic senators will find it hard to oppose a nominee whose lengthy judicial record proves he is a principled constitutionalist who will faithfully follow the law as written, without regard to whether the results comport with conservative policy preferences.
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.
The Committee for Justice submitted a letter to Congress urging that stricter privacy regulations are not only unnecessary but, if enacted, would also hurt consumers, threaten the online ecosystem that has transformed our daily lives, and negatively impact our country's economic growth.
If sanctioned by the Court, the Justice Department's decision to serve Microsoft with a warrant – rather than using the existing international treaty structure to get the data from Irish law enforcement – threatens the current regime of effective cooperation among the world's law enforcement agencies. The result is likely to be unilateralism, which also harms America's global tech companies by forcing them into the no-win situation of satisfying conflicting legal regimes.
The Committee for Justice (CFJ) joined a letter to trade negotiators from the United States, Canada, and Mexico, urging them to protect websites from liability for third party content posted on their sites when updating the North American Free Trade Agreement (NAFTA). The letter requests that the renegotiated agreement incorporate protection similar to that afforded by Section 230 of the 1996 Communications Decency Act, a domestic statute that provides websites with limited immunity from liability for third-party speech.
The Court's newest justice, Neil Gorsuch, was sympathetic at oral argument today to the argument that the government had usurped Carpenter’s property rights. In fact, at his confirmation hearing earlier this year, Gorsuch stated that “Technology changes but the principles don’t,” adding that “it can’t be the case the U.S. Constitution is any less protective” of people’s privacy than it was at the time it was written.
Curt Levey, president of the Committee for Justice, said the courts are an attractive venue for challenging Mr. Trump “because a majority of the district and circuit courts seats are still held by Democratic appointees, whereas the other two branches of government are controlled by Republicans.”