As Judge Ketanji Brown Jackson is making headlines and history as the first Black woman confirmed to serve on the United States Supreme Court, the privacy community is exploring the related privacy law experience she brings to the Court and what her appointment could mean for future decisions.
During nomination hearings in March, Jackson faced two days of questioning from members of the Senate Judiciary Committee on her qualifications, sentencing record as a U.S. District Court judge for the District of Columbia and on the U.S. Court of Appeals for the D.C. Circuit, and other pointed topics, including her thoughts on the Fourth Amendment and emerging technologies.
Potential impact on a ‘developing area’
During her time on the bench, Jackson issued decisions in more than 570 cases — including those around the Freedom of Information Act, employment law and contract disputes — but Squire Patton Boggs Senior Associate Kristin Bryan, CIPP/US, said a “relatively small number” have involved data privacy. Bryan said this is “unsurprising” given the D.C. courts where Jackson served, noting privacy or cybersecurity claims are not frequently litigated there.
But, she added, there has been activity in recent years around Supreme Court rulings related to data privacy, so Jackson’s appointment comes at an “interesting” time. She pointed to the TransUnion case before the Supreme Court in 2021 involving Fair Credit Reporting Act claims and Article III standing, which she said is a “significant question” often raised in data breach and data privacy cases.
Jackson’s decisions on the whole, Bryan said, “are very well-reasoned, methodical and show the depths of her intellectual abilities as a jurist.”
Bryan said Jackson has “not shied away from” dismissing data privacy cases for lack of Article III standing, which she sees as positive. In one class action, Jackson ruled the plaintiff — who alleged an online company violated its privacy policy by allowing third-party entities to collect their personal information — lacked standing to bring the claims forward.
“Judge Jackson took a very pragmatic approach. She looked at the plain language of the privacy agreement at issue and found the plaintiff’s claims were wholly unsupported by the policy. So, in light of the high frequency in which Article III standing is raised in data privacy cases, from a defense standpoint, I find this ruling encouraging,” Bryan said, adding it highlights that in her role as a Supreme Court justice, Jackson will “not shy away from dealing with challenging issues where a plaintiff may bring claims without merit.”
Electronic Privacy Information Center Law Fellow Sara Geoghegan argued the Supreme Court has constrained Article III standing in recent decisions, making it “harder and harder for plaintiffs to vindicate privacy harms under Article III standing.” On March 21, the first day of Jackson’s confirmation hearings, EPIC addressed a letter to Senate Judiciary Committee Chairman Dick Durbin and Ranking Member Sen. Chuck Grassley, urging the lawmakers to question Jackson on key privacy issues, including Article III standing, and the Fourth Amendment and emerging technologies.
“Judge Jackson’s views on these issues could have far-reaching implications for civil liberties, consumer protection, and the future of privacy in the digital area,” EPIC wrote.
EPIC called the Fourth Amendment — prohibiting unreasonable searches and seizures without a warrant — “the principal constitutional safeguard of the right to privacy.” The organization cited a case in which Jackson denied a motion by a defendant accused of drug trafficking to suppress electronic communications collected from her cellphone through a wiretap. Jackson ruled in favor of surveilling the defendant’s communications as law enforcement had otherwise insufficient methods to determine the scope of her alleged crimes.
Geoghegan said it’s important to have federal judges who can understand new and advancing technologies and how the Fourth Amendment applies to those technologies.
“As new technologies develop, and our laws tend to lag, it can be harder to have basic protections that are provided by the Constitution for new technologies because we don’t have case law that discusses a new technology,” Geoghegan said.
During confirmation hearings, Sens. Amy Klobuchar, D-Minn., Richard Blumenthal, D-Conn., and others, asked Jackson’s thoughts around applying the law to emerging technologies, including digital algorithms impacting children online and data collection through a variety of means including vehicles and smart devices.
Jackson said Supreme Court decisions have already faced issues related to modern technologies, like GPS location data or warrantless cellphone searches. The court, she said, “looked back at the time of founding and determined what the reasonable expectations of privacy were related to the term unreasonable searches and seizures, which appears in the Constitution.” The Court then used those principles to make a decision “with reference to what the Constitution meant in history.”
Hopes for the future
Following her confirmation, in remarks made at the White House, Jackson said she held 95 personal meetings with 97 sitting senators throughout the process, during which they discussed “substantive and engaging conversations about my approach to judging and about the role of judges in the constitutional system we all love” — subjects Jackson said she cares about “deeply.”
Jackson said she has heard thousands of cases and written hundreds of opinions during her career, “And in every instance, I have done my level best to stay in my lane and to reach a result that is consistent with my understanding of the law and with the obligation to rule independently without fear or favor.”
Bryan said she’s encouraged “that on a day-to-day basis, Judge Jackson would look carefully at the plain language of the statute as written and apply her experience with consumer privacy litigations, with class actions, and express the issues that can occur in this developing body of the law.”
Consumer and privacy advocates hope that in the future the court looks at how to apply the spirit of the Fourth Amendment to emerging technologies, Geoghegan said.
“I think the court’s role in promoting government transparency and making sure that our laws keep up with emerging technologies and allowing individuals to have their rights heard in court is very important, and I hope the Supreme Court can do that in the future,” she said.
Geoghegan also noted hopes for Congress to pass comprehensive privacy legislation to establish privacy safeguards.
“Congress can and should act and there’s been some really good and exciting legislation brought up recently,” she said. “It’s something we hope for in the future because if the court is constraining Article III, then Congress should be providing safeguards for privacy.”
Photo by Claire Anderson on Unsplash
