Trump’s SCOTUS Nominee Brett Kavanaugh Is a Disaster for Net Neutrality, Great for the NSA

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Photo: Alex Brandon (AP)

On Monday night, President Donald Trump announced his second Supreme Court nominee of his term: the DC Court of Appeals’ Judge Brett Kavanaugh. On a range of issues—but particularly net neutrality, the principle that service providers should be required to treat all data on their networks equally—he is likely to be a total disaster if confirmed by the Senate. For the National Security Agency and big businesses that hate regulation, though, he’ll be great.

Kavanaugh is a steadfast conservative, the New York Times wrote, particularly in his decisions on the “Second Amendment, religious freedom, [and] campaign finance.” He’s also issued “vigorous opinions hostile to administrative agencies, a central concern of the modern conservative legal movement.” That included the Barack Obama-era decision by the Federal Communications Commission to enforce net neutrality rules on the service providers that act as gatekeepers to the modern internet, the same rules the Republican-controlled FCC recently revoked.

According to a rundown from Politico earlier on Monday, Kavanaugh dissented from a ruling upholding the FCC’s net neutrality rules in May 2017. Kavanaugh wrote that the FCC mandate was “unlawful and must be vacated.” In particular, Kavanaugh believes that the FCC did not have the power to impose the rules by itself—which would require congressional intervention to fix—and contended that its actions also violated the First Amendment.

Kavanaugh wrote:

First, Congress did not clearly authorize the FCC to issue the net neutrality rule. Congress has debated net neutrality for many years, but Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose commoncarrier obligations on Internet service providers. The lack of clear congressional authorization matters.

As for the First Amendment issue, he argued that ISPs essentially act as editorial operations when they make decisions about content and the government needs to clear high hurdles to regulate those decisions:

Second and in the alternative, the net neutrality rule violates the First Amendment to the U.S. Constitution. Under the Supreme Court’s landmark decisions in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997), the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market. Here, however, the FCC has not even tried to make a market power showing. Therefore, under the Supreme Court’s precedents applying the First Amendment, the net neutrality rule violates the First Amendment.

… The threshold question is whether the First Amendment applies to Internet service providers when they exercise editorial discretion and choose what content to carry and not to carry. The answer is yes.

Later in the decision, Kavanaugh wrote that ISPs are not fundamentally different in this manner from cable companies and bookstores, both of which make decisions about what kind of content to carry or not. He argued that while exceptions exist in situations where “market-distorting monopoly power” threaten to limit the availability of content to consumers, the FCC did not bother to prove that was the case, and warned of a slippery slope if regulators were allowed to impose rules without demonstrating so:

Consider the implications if the law were otherwise. If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well.

2016 FCC data shows that 56 million American households out of 118 million have no access to or only one choice of high-speed broadband provider, while only 6.9 million have a choice of three or more. But Kavanaugh conveniently cited an article arguing that “vibrant competition” exists in the form of wireless providers. (The argument that wireless internet is a substitute for broadband is too much even for Ajit Pai’s FCC, which backed down on a boneheaded plan to redefine service standards this way in January.)

Beyond net neutrality, Kavanaugh seems like he would be a reliable enemy to proponents of digital privacy and federal regulatory agencies like the Consumer Financial Protection Bureau and Environmental Protection Agency.

As Politico noted in a separate article, Kavanaugh upheld rulings that the NSA’s massive metadata collection program was legal, citing the “third-party doctrine” that collecting records from service providers does not constitute a search of the customer. He added that the program constituted a “special need” overriding individual privacy protections. (CNET wrote that the Supreme Court “recently ruled against the third-party doctrine for location history data,” though it is possible a court with Kavanaugh on it could go the other way.)

Kavanaugh additionally argued in another case that monitoring the movements of a criminal suspect’s car via GPS surveillance device without a warrant was not a violation of the Fourth Amendment, Politico wrote, since there is no reasonable presumption of privacy in a person’s public movements. However, the site noted he wrote an additional statement arguing that actually tampering with the car itself without a warrant was illegal.

Per TechCrunch, Kavanaugh also believes that the CFPB—the agency created in 2011 as part of the Dodd–Frank financial reform law—is unconstitutional. Kavanaugh’s opposition is based on the independent agency being managed by a single director who cannot be fired by the president, which proponents say allows it to aggressively respond to potential wrongdoing (say, the Equifax hack) and conservatives argue makes the agency unaccountable. The agency is currently managed by Mick Mulvaney, who is doing his best to destroy it with or without Kavanaugh’s help.

In another case, the Washington Post noted, Kavanaugh ruled that the EPA should have to consider how much it costs for coal- and oil-fired power plants to reduce their emissions of toxic chemicals like mercury, dissenting from other justices who upheld the pollution standards. As noted by ThinkProgress, in another case regarding the Obama-era Clean Power Plan, he appeared amenable to neutering the EPA’s authority to enforce new regulations.

Other tech-related arguments by Kavanaugh flagged by Bloomberg BNA include throwing out Federal Aviation Authority rules requiring drone registration. If confirmed, he may also have the opportunity to weigh in on a case regarding whether public access TV channels count as public forums.

Republicans in the Senate are gearing up to push Kavanaugh through before the 2018 midterm elections, and it is very likely they will succeed. Confirmation is not assured, with a number of GOP swing votes potentially capable of tanking his nomination. However, a number of Democrats could also cave. The New York Times noted that pushback from Senate Majority Leader Mitch McConnell arguing that some of Kavanaugh’s rivals for the nomination would face easier confirmation processes only seems to have deepened Trump’s resolve.



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