Small differences in whether the next justice leans toward supporting individual privacy rights vs. broad law enforcement powers or tech companies vs. digital rights advocates could make a big difference.
The court is already scheduled this fall to weigh in for the first time on the nation’s main anti-hacking law, which cybersecurity experts say has been weaponized by companies to punish researchers who point out digital bugs in their products and websites and keeps on the market products vulnerable to hacking.
“There are huge cases coming from a cybersecurity perspective and this vacancy could very well make a difference,” Jeffrey Vagle, a Georgia State University law professor who focuses on cybersecurity and technology, told me. “These all tie together in how we think about computers and how much they’re like everything else.”
Technology and privacy have been less partisan topics for the high court than voting rights and abortion and are getting comparatively little attention during the nomination fight.
Republican leaders are pushing to install a Trump-appointed justice before the end of the year, despite having blocked then-President Obama’s appointment of Merrick Garland during a presidential election year in 2016. Democrats, meanwhile, say the next justice should be appointed by the president who’s elected in November and warn that an appointment this year could worsen partisan divisions.
But tech and privacy cases could have an outsize effect on how Americans interact with technology and how much control they have over their personal data during the coming decades ― especially as advances such as artificial intelligence and cloud computing integrate technology even further into the fabric of daily life.
There have been some close decisions on such cases, especially when privacy rights butt up against the needs of law enforcement.
Most notably, in a major 2018 case, Chief Justice John G. Roberts Jr., who was appointed by Republican President George W. Bush, sided with the four liberal justices to significantly limit when police could obtain cell tower location information providing a virtual map of a suspect’s location.
A Trump pick who supports broad law enforcement powers could tip the balance in future such decisions.
In other cases, liberal and conservative justices have been unified. In a major 2014 case, for example, the justices voted unanimously that police generally must obtain a warrant before searching the cellphone of someone they arrest. They also voted unanimously in 2012 to rein in when police could track criminal suspects with GPS devices.
A younger justice will also likely upgrade the court’s tech savvy.
Tech advocates have long turned a skeptical eye to the high court where justices still communicate with paper notes and, before Ginsburg’s death, more than half of the members were in their 70s and 80s.
Trump’s likely front-runner for the post is Judge Amy Coney Barrett, a federal appeals court judge who’s 48.
While Barrett has a track record opposing abortion and on other top Republican issues, there’s very little indication how she’d rule on specific technology and cybersecurity cases.
It’s not clear who Biden would appoint if he wins the election and Democrats are successful in stopping Trump and Senate Majority Leader Mitch McConnell (R-Ky.) from filling the post before the inauguration ― though he earlier pledged to appoint a Black woman. Regardless, that nominee is sure to be younger than the 87-year-old Ginsburg.
“I think it’s … valuable that a judge have an understanding of how people actually use technology and how it affects their lives,” Andrew Crocker, senior staff attorney at the Electronic Frontier Foundation, a digital rights advocacy group, told me.
“Given that at least some tech issues can be influenced by a justice’s familiarity with the technology and their use of it, I think every time we have a new justice on the court who’s a generation younger than the one he or she replaces that probably marginally advances the court’s overall understanding and capacity to deal with tech issues,” Jeffrey L. Fisher, a Stanford University law professor who’s argued numerous major tech cases before the court, told me.
Fisher is also the lead attorney in the case the court will hear in November over how broadly to interpret the nation’s main anti-hacking law, the Computer Fraud and Abuse Act.
The case, which has been eagerly awaited by cybersecurity experts, essentially boils down to whether companies can enforce terms of service that block researchers from searching out software bugs that could be exploited by hackers.
The case is unlikely to break down on partisan lines. But the fact that it will likely be heard by only eight justices raises the chances it could lead to a split decision. That would effectively leave the major questions about the 1986 anti-hacking law unresolved.
Trump’s effort to punish China’s WeChat app is facing trouble in the courts.
A federal judge in San Francisco ruled WeChat users who asked to delay the ban during a legal challenge raised “serious questions” about how the ban could affect their First Amendment rights, Jeanne Whalen reports.
China has already threatened to retaliate with a new list of sanctions against American companies that could include Google and Apple if the ban goes into effect, Gerry Shih reports.
Meanwhile, a Trump-approved deal for Oracle to partner with TikTok is awaiting a greenlight from the Chinese government, Rachel Lerman reports. Trump delayed the TikTok ban, which was supposed to go into effect yesterday, by one week.
Oracle and Walmart will invest in TikTok as part of the deal, creating a new company called TikTok Global, headquartered in the United States. TikTok’s Chinese owner ByteDance would likely retain some ownership.
Oracle will also move all U.S. user data to its cloud, which complies with U.S. law and privacy regulations, the company says. The companies say the deal addresses White House security concerns that under Chinese ownership TikTok could be compelled to share U.S. user data with Chinese authorities. Oracle said in a statement that its “unique technology eliminates the risk of foreign governments spying on American users or trying to influence them with disinformation.”
Experts expressed skepticism that the deal would resolve the White House’s cybersecurity concerns. Secure Democracy’s Lindsay P. Gorman:
Center for a New American Security’s Elsa B. Kania
German prosecutors are considering homicide charges after a cyberattack may have led to the death of a hospital patient.
The patient died on the way to another hospital after Duesseldorf’s University Clinic had to turn her away because its systems had been locked up by hackers demanding a ransom payment. The hospital’s IT system was still down as of Friday and unable to take patients.
Hackers were able to get into the system by exploiting a well-known bug that Germany’s cybersecurity agency warned hospitals to protect against more than six months ago.
“I can only urge you not to ignore or postpone such warnings but to take appropriate action immediately,” Germany’s top cybersecurity officer, Arne Schoenbohm, said. “This incident shows once again how seriously this danger must be taken.”
Assange says he was offered a pardon if he said Russia wasn’t involved in the DNC hack.
The WikiLeaks founder’s lawyer, Jennifer Robinson, said she saw former congressman Dana Rohrabacher (R-Calif.) make the offer in August 2017, Alexander Smith and Michele Neubert at NBC News report. WikiLeaks published many of the emails leaked in the Democratic National Committee hack in 2016.
“He said that he regarded the ongoing speculation as damaging to U.S.-Russian relations, that it was reviving old Cold War politics, and that it would be in the best interests of the U.S. if the matter could be resolved,” Robinson told the court.
Robinson first submitted the evidence to the court at the beginning of Assange’s trial in February. He’s fighting extradition to the United States, where he’s facing charges under the Espionage Act.
The White House denied Assange’s claims in February. Rohrabacher said he told Assange he would call on Trump to pardon him if he could provide information on the source of the DNC hack, but denied he had discussed it with Trump.
Securing the ballot
Facebook has helped over 2 million users register to vote, surpassing 2016 and 2018 numbers.
The social media platform plans this week to add deadlines for voter registration to its Voting Information Center, the company announced in a news release. The online tool will also help voters learn more about early voting details.
The company is hoping to reach 4 million voters by Election Day.
Facebook-owned WhatsApp is increasing efforts to fact check misleading election information, according to the release. It’s supporting a project led by the International Fact-Checking Network to fact check misinformation and disinformation in English and Spanish on the app from now through inauguration day.
Other social media companies have launched similar efforts.
National security watch
Britain’s former top cybersecurity official warned against over-hyping cyberthreats against national security.
Ciaran Martin, former head of Britain’s National Cyber Security Center (NCSC), warned against the idea that Russian interference in elections is ubiquitous, Ellen Nakashima reported.
“It does us no good to overhype the adversary, or to imply damage where none has been caused,” Martin said in a talk at a British think tank. “Our democratic processes are at risk of strategic harm from outside interference, but they’re also much more robust than they’re often given credit for, and it’s in our interests to say that and retain public confidence in them.”
Martin did warn against the risk of cyberattacks causing economic disruption.
“Right now, cyberattacks are more a threat to wealth than our safety, to our sense of liberty, happiness and well-being rather than life and limb,” Martin said. “They add up to a significant national security and prosperity problem.”
- The Senate Homeland Security Committee will hold a hearing on “State and Local Cybersecurity: Defending Our Communities from Cyber Threats amid COVID-19” on Tuesday at 3 p.m.
- The Senate Commerce Committee will hold a hearing, “Revisiting the Need for Federal Data Privacy Legislation,” on Wednesday at 10 a.m.
- The Senate Judiciary Committee will hold a hearing to examine threats to U.S. intellectual property, focusing on cyberattacks and counterfeits during the coronavirus pandemic on Wednesday at 2:30 p.m.
- New America’s Open Technology Institute will hold a virtual panel exploring how Internet platforms are addressing the spread of election-related misinformation on Oct. 1 at 1:30 p.m.
Secure log off
To remember the life and legacy of Supreme Court Justice Ruth Bader Ginsburg, here’s a compilation of interviews, speeches and poignant moments in her life.