New Technology, Same Principles: The Supreme Court and Tech
Note: The following paper appeared in a larger volume of essays from the American Action Forum, which can be found here.
During the confirmation hearings for then-Judge Neil Gorsuch, Senator and former Judiciary Committee Chairman Orin Hatch asks a question about interpreting constitutional provisions in the digital age. How, he asks, can a two-century old document apply to technologies that were not even imagined by the Founders?
Gorsuch responds, “So, the technology changes, but the principles do not. And it cannot be the case that the United States Constitution is any less protective of the people’s liberties today than it was the day it was drafted.”
Will the Supreme Court — with the recent addition of Justices Gorsuch and Kavanaugh — adhere to the dictum “new technology, same principles?” Only time will tell, but a few recent cases may serve as good indicators. Still, the law governing emerging technologies is predominantly statutory, which means that despite decisions by the courts Congress will inevitably have many questions to address.
Between the current cases before the Supreme Court and sensible legislation from Congress, there is still hope that our institutions will succeed in protecting both innovation and the principles of our founders in this brave new high-tech world.