Jackson Urges Senate Judiciary to Update Laws to Reflect New Tech
Supreme Court nominee Ketanji Brown Jackson continued telling lawmakers there are opportunities for judges to reinterpret existing laws to reflect emerging technologies, during her Wednesday confirmation hearing, but said she believes Congress can make it “far easier for judges who are doing their duties to interpret the law” by updating statutes to reflect “modern innovations.” Sen. Alex Padilla, D-Calif., echoed Sen. Jon Ossoff of Georgia and other Democrats in urging Jackson to be cognizant of those technologies as she interprets laws (see 2203230066). Tech and telecom issues didn’t come up during Senate Judiciary’s Thursday hearing on Jackson, which featured witnesses giving outside opinions on Jackson.
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Senate Judiciary is likely to vote April 4 on advancing Jackson, Senate aides told us. Committee Chairman Dick Durbin, D-Ill., said Wednesday Jackson is on the agenda for the first time during the panel’s Monday executive session, but nominees are typically held over for one week after first being brought up for consideration.
“I appreciate that the speed of innovation will always challenge our ability to keep the law up to date with new technologies and their impact,” Padilla said. It’s “a challenge for the courts which often have to decide cases during the time between technological progress and the enactment of new laws that account for that progress. New technology alone has given rise to a number of fundamental questions of law, including how the Fourth Amendment applies to new contexts that” none of the founding fathers “could have ever contemplated.”
Ossoff said it’s “vital that we in Congress and the judiciary relentlessly defend the principles of the First Amendment and the free expression of ideas even as new technologies emerge which disrupt these markets and present challenging new particular circumstances to the court.” At “the time of the invention of the printing press, many of those who previously had centralized control of the production and dissemination of information recognized it was disruptive, threatening and that it disrupted power dynamics and empowered new participants in public discourse,” he said.
Jackson emphasized the importance of Congress making clear when it allows federal agencies to discount the Administrative Procedure Act in their work on rulemakings, in response to a question from Sen. John Kennedy, R-La., about her 2019 ruling as a judge for the U.S. District Court for Washington, D.C., on a legal challenge to a Department of Homeland Security immigration rule. “The APA under longstanding D.C. Circuit case law is presumptively applicable to every situation in which an agency is exercising its discretion,” Jackson said. “It’s always there as a background rule. So the D.C. Circuit has said Congress has to be pretty clear when it decides to exclude the APA, when it’s saying ‘I’m giving you discretion, but you can do this arbitrarily, you can do it however you want.’” She had a similar exchange earlier Wednesday with Senate Judiciary ranking member Chuck Grassley, R-Iowa.
Jackson’s “judicial record provides few clues as to her approach” to handling tech legal cases, but she does appear to be “disinclined toward tech exceptionalism,” meaning a “skepticism that generally applicable laws should apply differently in cyberspace,” American Enterprise Institute Nonresident Senior Fellow Daniel Lyons said Thursday. Jackson’s comments during the Senate Judiciary hearings calling into question proposals to condition Communications Decency Act Section 230 immunity on online public forums not discriminating against certain viewpoints are “promising indeed,” he said: “The First Amendment only protects against government infringement of speech. This means that, far from serving constitutional rights, a congressional mandate that platforms publish specific viewpoints could in fact violate the First Amendment -- specifically, the First Amendment rights of the platforms themselves.”