Scalia's privacy and cyber legacy -- and what's next?

Debate over Sen. Mitch McConnell’s statement that Supreme Court Justice Antonin Scalia should not be replaced has overlooked what a successor might mean for cyber law.
Debate over Sen. Mitch McConnell’s statement that Supreme Court Justice Antonin Scalia should not be replaced has overlooked what a successor might mean for cyber law.

Following Senate Majority Leader Mitch McConnell's (R-Ky.) statement Saturday that Supreme Court Justice Antonin Scalia should not be replaced until after the presidential election, political discussions on Capitol Hill have devolved into a riotous debate.

Lost in the noisy discussion has been thoughtful consideration over what a successor to Justice Scalia would mean to legal precedent in cybersecurity and privacy cases.

While Scalia brought a decidedly politically conservative perspective to the cases that he weighed in on, especially on issues related to rule of law and civil law, his approach to cyber and privacy issues was surprisingly nuanced. His strong support for Fourth Amendment rights overlapped with vocal support for privacy rights from his colleagues to the left. Justice Ruth Bader Ginsburg called Scalia “one of the most pro-Fourth Amendment judges on the court.”

In Kyllo v. United States (2001), for example, a case that involved law enforcement authorities' use of thermal heat sensors to determine whether high-intensity lamps were used in a home for indoor marijuana growth. Scalia surprised many observers when he authored the majority opinion, not only ruling against the use of the heat sensors, but also protected against other surveillance equipment that would be created from future technologies. 

In a similar case, United States v. Jones (2012), in deciding whether authorities need a warrant to place a GPS tracking device on a vehicle, Scalia also authored the majority opinion, in ruling that affixing a GPS tracking device would involve trespassing onto the vehicle.

It isn't clear whether an Obama nominee “would lead to a different outcome” in cases similar to Kyllo v. United States or United States v. Jones, Michael Gottlieb, a former associate White House counsel and a member of the privacy, cybersecurity & technology practice at Boies, Schiller & Flexner LLP, told SCMagazine.com. In both cases, Scalia's rulings in favor of privacy limited the scope of the rulings with language that referenced physical property and did not extend to phone or digital surveillance.

The nominees that Obama is rumored to be considering include U.S. attorney general Loretta Lynch, chief judge on the D.C. Circuit Court Merrick Garland, former public defender Jane Kelly, D.C. Circuit Court judge Sri Srinivasan, and California attorney general Kamala Harris. (Harris now appears a less likely pick after she told reporters on Tuesday, “I'm not putting my name in for consideration. I do not wish to be considered. I am running for the United States Senate.”)

Any of these nominees “are likely to be strong supporters of the Fourth Amendment,” said Lisa Hayes, vice president of planning for Center for Democracy & Technology (CDT). “Equally important, they all have a strong understanding of how people use and interact with technology.” (Last year, Chief Justice John Roberts pondered why anyone except a drug dealer might carry more than one cell phone. He responded incredulously to an assistant federal public defender who challenged this view, “What is your authority for the statement that many people carry multiple cell phones on their person?”)

In cases related to cell phone surveillance or drone technologies, an Obama nominee might be inclined to set different precedents from those that Scalia would have set, Gottlieb said. He suspected Kelly would likely hold “a more expansive view of the scope of the Fourth Amendment and criminal procedural rights.”

One of the pending cases on the Court's docket is Spokeo, Inc. v. Robins, a case that would decide whether victims may seek damages from private companies in situations where concrete harm cannot be determined. The Supreme Court is scheduled to review the Ninth Circuit's ruling that the victims could bring a putative class action lawsuit under the Fair Credit Reporting Act (FCRA) against Spokeo, Inc., a data aggregator that collected personal data and sold the information to potential employers.

Scalia's “sentiment of government surveillance did not necessarily extend to private companies,” Omer Tene, vice president of research and education, International Association of Privacy Professionals (IAPP), told SCMagazine.com.

In cases of a locked jury, ruling made by previous courts would be hold. “It's quite possible that the Spokeo might come out 4/4 without Scalia,” said Hayes.

Whoever is nominated will likely decide on cases that reform or clarify the Computer Fraud and Abuse Act (CFAA), the Electronic Communication Privacy Act, and the Cybersecurity Act of 2015, said Tene. “I think those will certainly be litigated within the near future.”

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