Much of the focus surrounding President Donald Trump’s nominee to replace U.S. Supreme Court Justice Anthony Kennedy has been the fate of abortion rights, but Brett Kavanaugh – a selection Trump reportedly negotiated with Kennedy for months – could have a major impact on American digital life as well.
Perhaps most concerning for supporters of net neutrality, Kavanaugh issued an important dissent as part of a hearing on the FCC’s 2015 net neutrality order, which put in place consumer protections for internet users. Kavanaugh wrote that the “net neutrality rule is one of the most consequential regulations ever issued,” but that it was “unlawful and must be vacated” for two reasons. The first was simply that the FCC was not clearly granted the authority to make the rule, and thus overstepped by implementing it, Kavanaugh argued.
Additionally, Kavanaugh wrote, restricting the actions of internet service providers amounted to intruding on their “editorial discretion.” As a result, he argued, the net neutrality rule violated First Amendment protections. (The rules blocked ISPs from favoring certain kinds of internet traffic.) Despite Kavanaugh’s dissent, the court ruled against a petition for a re-hearing, supporting the FCC’s authority on the issue.
Senator Chuck Schumer (D-NY) was quick to point out Kavanaugh’s apparent allegiance to corporate interests Monday, specifically mentioning the judge’s opinion on net neutrality:
The Verge also notes a report by POLITICO regarding Kavanaugh’s stance on government surveillance by the Nation Security Agency:
As part of a challenge to the program, Kavanaugh wrote that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” Kavanaugh argued that the collection of records was not unlawful because the data was obtained through a third party, and would not constitute an “unreasonable” search based on past case law.
While there is no way to know for sure what cases will come before the court in the future, Kavanaugh has demonstrated a willingness to bow to both corporate and government interests ahead of the people.