Last month, the President announced his nomination of Judge Neil M. Gorsuch—a federal appeals court judge—to the Supreme Court. Gorsuch must still go through Senate confirmation hearings before officially becoming the ninth justice in our nation’s highest court, but some are already discussing Gorsuch’s potential impact on cybersecurity, technology and privacy law.
Gorsuch is better known for his rulings related to religious liberty and criminal, reproductive, and administrative law. However, when faced with cases involving technology and digital rights, Gorsuch has demonstrated his careful consideration of the way ever-evolving technologies impact constitutional rights.
For example, in U.S. v. Denson, Gorsuch considered whether police officers’ use of a radar device to determine the location of an individual inside of a home violated that individual’s Fourth Amendment rights. In connection with that case, Gorsuch wrote “we don’t doubt for a moment that the rise of increasingly sophisticated and invasive search technologies will invite us to venture down this way again – and soon.”
“It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions.” He wrote. “New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights.”
In the coming years, the Supreme Court is likely to consider cell phone location data, encryption, and other privacy issues. Gorsuch, if confirmed, will play a key part in shaping the law with respect to these ongoing privacy and cybersecurity issues.