Future Tense

Brett Kavanaugh’s Supreme Court Nomination Is Bad News for an Open Internet

Supreme Court nominee Brett Kavanaugh speaks after US President Donald Trump announced his nomination in the East Room of the White House on July 9, 2018 in Washington, DC. (Photo by MANDEL NGAN / AFP)        (Photo credit should read MANDEL NGAN/AFP/Getty Images)
Probably down with Comcast throttling you. MANDEL NGAN/Getty Images

President Trump announced Monday evening that his pick to fill Justice Anthony Kennedy’s Supreme Court seat is Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit.
Kavanaugh’s conservativism is evident in his political background—he was an aide to George W. Bush—as well as through his judicial record.

When it comes to issues involving the internet and the rights of users online, Kavanaugh has already given us a good idea of where he stands: His history reveals a judge who is more sympathetic to the handful of companies that control the internet—and to the government agencies that sometimes use it to surveil—than to the hundreds of millions of Americans who use it.

Kavanaugh has argued that the Obama-era network neutrality rules, which were rescinded by the current Federal Communications Commission under Trump appointee Ajit Pai, were unconstitutional because in his view the rules, which prevented internet service providers like Comcast and Verizon from blocking access to certain websites or slowing down speeds, violated the free-speech rights of internet providers. Now that those rules are no longer on the books thanks to a decision that was finalized in December 2017 (and was enacted this June), public interest advocates and a cadre of state attorneys general have filed law suits against the FCC challenging the repeal of the open internet protections. If any of those cases do make it to the Supreme Court, Kavanaugh probably feels that net neutrality isn’t something the federal government should take strides to preserve.

In his 2017 dissent against the majority of the D.C. Circuit Court of Appeals, which voted to uphold the Obama-era FCC’s net neutrality rules before the recent repeal, Kavanaugh wrote that he considers cable operators and internet service providers to be similar, since they both deliver content to subscribers. “Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit,” Kavanaugh wrote. “Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.” The problem with this argument is that cable providers’ whole service is to offer a set of channels, while internet service providers have an ever-growing and morphing internet to provide service for—blocking or limiting parts of the internet isn’t the same as not offering any one channel. The internet is a place where anyone can make a website and start a business, so giving ISPs the ability to pick and choose what websites their subscribers get to access gives powerful corporations the ability to effectively silence speech they don’t like. In fact, the rules are supposed to protect free speech, leveling the online playing field so everyone can communicate on the internet equally without powerful internet providers interfering.

While Kavanaugh has readily defended the constitutional rights of internet companies, he seems less concerned with the rights of technology users. In 2015, Kavanaugh wrote in support of the National Security Agency’s warrantless phone records collection program, which was challenged on Fourth Amendment grounds, Politico reported. “In my view, that critical national security need outweighs the impact on privacy occasioned by this program,” Kavanaugh wrote in a concurring opinion with the U.S. Court of Appeals for the D.C. Circuit declining to rehear a case challenging the legality of the mass surveillance programs revealed by Edward Snowden in 2013. In other words, Kavanaugh thinks that government mass surveillance of American’s digital communications records doesn’t require a warrant and isn’t a violation of anyone’s privacy rights.

As larger and larger chunks of our lives take place online, more issues involving our rights on the internet will come before the Supreme Court. If Kavanaugh is confirmed, he’ll cement a conservative majority that is likely to agree that the government should be allowed to make broad requests to access the data that companies collect on us without a warrant—and that those companies should be able to put heavier thumbs on the scale when it comes to who accesses the web and at what price. Many of the major problems we have on the internet today—dragnet corporate and government surveillance, a handful of powerful companies that are allowed to control how we use the internet—could be deepened by a Supreme Court justice who could well be there for decades.