During a primetime television appearance tonight, President Donald Trump announced his final pick for the man who could be the next Apprentice---er, we mean the next justice to sit on the Supreme Court of the United States.
Judge Neil Gorsuch joined Trump at the White House, where the president hoped to begin the process of ending the deadlock that’s left the Supreme Court bench with four conservative judges and four liberal judges ever since Justice Antonin Scalia died nearly a year ago. In his remarks, Gorsuch praised Scalia, calling him "a lion of the law."
"Agree or disagree with him, all of his colleagues on the bench cherished his wisdom and his humor, and like them, I miss him," said Gorsuch, a federal appeals court judge.
For Democrats, the nomination of a staunch conservative judge is an affront to their efforts to nominate moderate Judge Merrick Garland during President Obama’s last year in office. In an unprecedented move, Republicans refused to even hold hearings on Garland’s confirmation. It’s little surprise, then, that leading voices on the left, including representatives from the NAACP's Legal Defense Fund and the Center for American Progress, were quick to criticize Trump's nominee.
"The president could have nominated an independent or consensus candidate for this seat," said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, on a call with reporters. "He chose Neil Gorsuch to be a rubber stamp, just another yes man in this administration."
But while liberals focused on such contentious issues as women's reproductive rights and environmental protections, Gorsuch will also face cases that demand a solid command of the complex issues digital technology raises, from copyright and privacy to intellectual property rights and data storage.
“A justice typically isn’t confirmed or denied based on these kinds of issues,” says Shaun Bockert, an intellectual property attorney at Blank Rome in Philadelphia. “There are hot button issues, and unfortunately whether software is copyrightable is not one of them.”
But that doesn’t mean these cases won’t have far-reaching implications for the tech industry and users of tech alike---which is to say pretty much everyone. Here are a few of the many tech-themed cases that are on the Supreme Court's docket or could make it there soon.
On its surface, this case seems to have nothing to do with technology. A 15-year-old Mexican boy named Sergio Adrian Hernández Guereca was playing with friends on the south side of the border separating El Paso, Texas, from Juarez, Mexico. Border patrol agent Jesus Mesa Jr. saw the boys; when Hernández fled to hide, Mesa shot and killed him from US soil. Hernández's parents sued Mesa in Texas, but Mesa moved to dismiss the case, arguing that because the boy was a Mexican national in Mexico, he wasn't protected by the Constitution.
Now the Supreme Court, which will hear arguments in this case in February, must decide whether constitutional rights apply across US borders. That's where things get interesting for tech firms who store data on servers all over the world. "It sounds like it has nothing to do with technology, until you think about cloud," says Neil Richards, a professor at Washington University Law School.
Far as this case may seem from all things tech, it could potentially determine what rights, say, Europeans are able to claim when dealing with the American companies that house and manage their data. Could they, for instance, sue a US company for violating their privacy rights under US law? This case comes amidst a flurry of activity in the world of data management in Europe. The European Parliament just approved a set of rules that allows Europeans to decide how they want their data to be collected, used, and stored.
This case isn't yet on the Supreme Court's docket, but it could make its way there in the not too distant future. It too deals with managing data across international borders. The case began in 2013 when a federal judge in New York ordered Microsoft to produce emails associated with a user's account. Those emails were stored on servers in Dublin, and Microsoft argued that US courts don't have authority over servers in other countries.
Courts have been divided on this issue, with lower courts siding with the government and the Second Circuit Court of Appeals siding with Microsoft last year. Now, the government is seeking a rehearing from the Second Circuit. If Microsoft loses and the case gets kicked to the Supreme Court, it could set a standard for what kinds of information the government can demand of tech companies in its quest to, for instance, use people's digital trails to fight terrorism and other crimes online.
The court will hear arguments in this case in late February. It concerns a North Carolina law that prohibits sex offenders from using sites like Facebook and Youtube because they could use them to communicate with minors. Lester Packingham, a convicted sex offender, was convicted in 2010 for violating that law after authorities discovered a Facebook post he wrote about a parking ticket. Packingham appealed his conviction, arguing that the Facebook ban was a violation of his First Amendment rights.
Put before the Supreme Court, this case will answer vital questions about how far the First Amendment right to free speech extends into the digital arena. "It deals with how broad, how fundamental, how strong are our rights to read and to participate with digital technology," Richards says. "Can they be removed for cause? And if so, under what causes?"
This is a case about a dancing baby. No, not that dancing baby. This dancing baby.
Specifically, it's about the fact that this baby happens to be dancing to Prince's "Let's Go Crazy." Universal Music, which owns the rights to the song, sent YouTube a takedown notice, citing copyright violation. Stephanie Lenz, who uploaded the video of her son, argued that the video was a "fair use" of the song.
If the Supreme Court accepts the case, the question before them will be at what point is that use of copyrighted materials, reproduced and repurposed online, a fair use of the material? That's a particularly pertinent question given how quickly moments are now meme-ified online.
"It will cause providers of these sorts of tech platforms to make a decision or have a more general rule on what they leave up and what they take down based on fair use," Bockert predicts.
The American Civil Liberties Union and the Council on American-Islamic Relations are just a few of the organizations that have filed lawsuits against President Trump’s controversial executive order temporarily banning travelers and refugees from seven predominantly Muslim countries. While it's not a tech issue, exactly, tech industry leaders, including Amazon's Jeff Bezos, have already thrown their support behind these cases.
There’s no telling which of them will rise to the Supreme Court, but Richards says you can almost guarantee there will be one. “Executive orders have a habit of ending up in the Supreme Court when there’s a large controversy surrounding them,” he says.
It’s not just the refugee ban that’s at issue, either. Already, San Francisco has filed a lawsuit challenging another executive order that aims to cut off so-called sanctuary cities from federal funding.
Given just how busily divisive Trump was during his first week in office, its safe to assume many more lawsuits are coming. If any of them make it to the Supreme Court, no doubt Trump expects Gorsuch to err on the side of conservatism. And yet, as Richards points out, many of these tech cases are new enough that the conservative case isn't always so clear. "When it comes to technology in particular," Richards says, "traditional labels like liberal and conservative don’t always apply."
