Homepage / Technology / Trump's SCOTUS nominee thinks ISPs have First Amendment rights, which could hurt privacy laws
Amazon says this Prime Day was its biggest shopping event ever Kudlow says President Trump is 'so dissatisfied' with China trade talks that he is keeping the pressure on As stocks regain their footing, an ominous warning looms Goldman Sachs downgrades Clorox to sell, says valuation is 'unsustainably high' How Satya Nadella has spurred a tripling of Microsoft's stock price in just over four years Kudlow says economic growth could top 4% for 'a quarter or two,' more tax cuts could be coming The one chart that explains Netflix’s stunning comeback US housing starts plunge 12% in June to a nine-month low Aerospace titans Boeing and Airbus top $110 billion in orders at Farnborough Target uses Prime Day to its advantage, logging its 'biggest online shopping day' so far this year Billionaire Marc Lasry sees bitcoin reaching up to $40,000 as it becomes more mainstream and easier to trade These are the 10 US airports where you're most likely to be hacked Amazon shares slightly higher as investors await Prime Day results Wreck of Russian warship found, believed to hold gold worth $130 billion A bullish ‘phenomenon’ in bond market is weeks away from fading, top credit strategist says Stocks making the biggest moves premarket: MS, GOOGL, TXN, UAL, NFLX & more Twitter shares up 50% since late April means most upside priced in, analyst says in downgrade EU fines Google $5 billion over Android antitrust abuse Mortgage applications fall 2.5% as buyers struggle to find affordable homes America may not have the tools to counter the next financial crisis, warn Bernanke, Geithner and Paulson Investors are getting spooked as the risk of a no-deal Brexit rises EU expected to fine Google $5 billion over Android antitrust abuse Ex-FBI chief James Comey urges Americans to vote for Democrats in midterm elections Elon Musk apologizes to British cave diver following baseless 'pedo guy' claim Disney, Comcast and Fox: All you need to know about one of the biggest media battles ever Xiaomi shares notch new high after Hong Kong, mainland China stock exchanges reach agreement The trade war is complicating China's efforts to fix its economy European markets set for a strong open amid earnings; Google in focus Hedge fund billionaire Einhorn places sixth in major poker tournament The biggest spender of political ads on Facebook? President Trump Asian stocks poised to gain after Fed's Powell gives upbeat comments; dollar firmer Stocks are setting up to break to new highs Not all FAANG stocks are created equal EU ruling may be too little, too late to stop Google's mobile dominance Cramer explains how Netflix's stock managed to taper its drop after disappointing on earnings Airbnb condemns New York City's 'bellhop politics,' threatens legal retaliation Amazon sellers say they were unfairly suspended right before Prime Day, and now have two bad choices Investor explains why 'duller' tech stocks can have better returns than 'high-flying' tech names Elon Musk is 'thin-skinned and short-tempered,' says tech VC Texas Instruments CEO Brian Crutcher resigns for violating code of conduct Google Cloud Platform fixes issues that took down Spotify, Snapchat and other popular sites Uber exec: We want to become the 'one stop' transportation app 'What a dumb hearing,' says Democrat as Congress grills tech companies on conservative bias Amazon shares rebound, report says Prime Day sales jumped 89 percent in first 12 hours of the event How to put your medical history on your iPhone in less than 5 minutes Investment chief: Watch these two big events in 2018 Even with Netflix slowing, the market rally is likely not over Cramer: Netflix subscriber weakness debunks the 'sky's the limit' theory on the stock Netflix is looking at watch time as a new area of growth, but the competition is stiff Why Nobel laureate Richard Thaler follows Warren Buffett's advice to avoid bitcoin Rolls-Royce is developing tiny 'cockroach' robots to crawl in and fix airplane engines After Netflix plunge, Wall Street analysts forecast just tame returns ahead for the once high-flying FANG group Roku shares rise after analyst raises streaming video company's price target due to customer growth China is investing 9 times more into Europe than into North America, report reveals Amazon says US Prime Day sales 'so far bigger than ever' as glitch is resolved Netflix is on pace for its worst day in two years US lumber producers see huge opportunity, rush to expand San Francisco to consider tax on companies to help homeless Homebuilder sentiment, still high, stalls as tariffs, labor and land drive up costs Powell backs more rate hikes as economy growing 'considerably stronger' Netflix history is filled with big stock declines – like today – followed by bigger rebounds Intel shares get downgraded by Evercore ISI due to rising competition from Nvidia, AMD Petco aims to reinvent the pet store with something you can't buy online Genetic testing is coming of age, but for consumers it's buyer beware Tech 'FAANG' was the most-crowded trade in the world heading into the Netflix implosion, survey shows Netflix weak subscriber growth may indicate a 'maturity wall' that could whack the stock even more: Analyst This chart may be predicting the bull market's demise Wall Street says Netflix's stock plunge is a ‘compelling’ buying opportunity because the streaming giant ‘never misses twice’ Tesla sinks after Musk tweets, again Boeing announces new division devoted to flying taxis Stocks making the biggest move premarket: NFLX, UNH, GS, AMZN, WMT & more Deutsche Bank downgrades Netflix, but says big subscriber miss is not 'thesis changing' IBM is experimenting with a cryptocurrency that’s pegged to the US dollar North Korea and Zimbabwe: A friendship explained Virgin Galactic spinoff Orbit to launch rockets from the UK with space deal Artificial intelligence will create more jobs than it destroys? That’s what PwC says ‘Treasonous’ Trump and ‘Putin’s poodle:' Scathing headlines follow the Trump-Putin summit China’s fintech companies offer ‘enormous’ opportunity, investment manager says Trump's performance at summit with Putin was 'unprecedented,' experts say Walmart and Microsoft link up on cloud technology as they both battle Amazon European stocks seen mixed amid earnings; Fed’s Powell to address Congress How I knew I should quit my day job and run my start-up full-time: Viral website founder China's stocks have been trounced, but the trade war may ultimately be good news for those shares Billionaire tech investor Peter Thiel bets on crypto start-up Block.one Asian shares subdued open after mixed close on Wall Street; energy stocks under pressure Amazon cloud hits snags after Amazon Prime Day downtime Netflix isn't doomed by one quarter unless people start questioning the long-term investor thesis Tech stocks set to sink on Tuesday after rough evening for ‘FANG’ Netflix plummets after missing big on subscriber growth This wristband lets humans control machines with their minds The U.S. has a rocky history convincing Russia to extradite computer criminals Amazon suffers glitches at the start of Prime Day Jeff Bezos is now the richest man in modern history 'The United States has been foolish': Read Trump and Putin's full exchange Goldman Sachs recommends these 5 highly profitable companies — including Nvidia — to combat rising inflation Goldman Sachs releases 'tactical' stock picks for this earnings season Three red flags for Netflix ahead of its earnings report The bond market may be raising recession fears, but don't expect one anytime soon Cramer: Banks are 'making fortunes' but are still as hated as they were during the financial crisis Putin told Trump at summit: Russia never meddled in US election


Trump's SCOTUS nominee thinks ISPs have First Amendment rights, which could hurt privacy laws

Americans hoping for stronger data privacy protections may find a foe in Brett Kavanaugh, President Donald Trump’s nominee to replace Supreme Court Justice Anthony Kennedy.

As a justice on the U.S. Court of Appeals for the D.C. Circuit, he dissented against his colleagues’ 2017 decision to uphold net neutrality, the Obama-era regulation requiring internet service providers like Comcast, Verizon and AT&T to treat all internet traffic as equal. Net neutrality violates the First Amendment, he said, because the regulation “infringes on the Internet service providers’ editorial discretion.”

It is not entirely clear where Trump’s administration stands on regulation of big tech. Although the Federal Communications Commission under Trump has already reversed net neutrality, on Thursday the Department of Justice appealed a federal judge’s June decision allowing AT&T to acquire Time Warner.

If Kavanaugh is approved, he would be the second-youngest Supreme Court justice at the age of 53. He would likely have a hand in decisions regarding data regulation far beyond Trump’s administration.

Some legal experts believe Kavanaugh’s First Amendment argument against net neutrality could be applied to data more broadly, and possibly pit him against current and potential data privacy regulations.

According to Christopher Sprigman, a law professor at New York University who authored an amicus brief submitted to the D.C. Circuit in favor of net neutrality, Kavanaugh’s argument that ISPs have a First Amendment right to determine what data they transmit implies that the data itself is speech.

If that is the case, he said, then the providers could argue that selling user data to advertisers counts as “speech” also protected by the First Amendment. If that argument were accepted by the court, there would be an additional hurdle to enacting data privacy regulation.

“The government would have to show an important interest that they are pursuing narrowly,” Sprigman said, “and that just makes it much more difficult for the government to regulate it.”

If Kavanaugh takes this position, it could spell trouble for state efforts to legislate data privacy protections if they were challenged in the Supreme Court.

Last month, California passed the country’s strongest law yeton data privacy. Starting in 2020, the law will require companies with data on more than 50,000 people to let consumers view data about themselves, request deletion of data, and opt out of having their data sold to third parties. Major tech companies like Google and Amazon opposed the measure.

Although the measure is popular, said Jane Bambauer, a law professor at the University of Arizona, it could be ripe for challenge in court.

“Because it affects so many different economic actors, and because it’s implicant this data as speech issue, I think it’s a really good example of a statute that was passed in sort of defiance of where the Supreme Court seems to be headed with its First Amendment doctrine,” she said.

Biometric privacy laws, which regulate the commercial use of physical identifiers such as iris scans and thumb prints, could also face trouble. Texas and Washington have such laws in place, but Illinois has the strictest, allowing individuals to sue companies.

As companies like Facebook make use of facial recognition technology, according to Bambauer, the definition of what exactly a biometric identifier is becomes a problem.

This could be a logistical challenge that gets solved through lobbying efforts, Bambauer said, or “it could be the sort of thing that companies choose to litigate and take advantage of First Amendment precedent to challenge the entire basis for the law.”

There is already some precedent for the idea that the court might view data as speech, according to Bambauer. A 2011 opinion struck down Vermont’s Prescription Confidentiality Law, which banned pharmacies from selling prescriber data to be used for marketing purposes without the prescribers’ consent, on the basis that it violated the First Amendment.

Kennedy wrote in the majority opinion that “this Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment.”

Kavanaugh, who clerked for Kennedy, “would be likely, on these issues, to either replicate Kennedy or even steer further towards a First Amendment that’s more likely to degrade regulatory systems,” Bambauer said.

However, not everybody thinks that Kavanaugh’s position on data as speech is so clear. Geoffrey Manne, executive director of the International Center for Law & Economics, said that Kavanaugh’s position in the net neutrality case has more to do with the providers’ right to define their brand than the data itself.

The “editorial control” Kavanaugh references, according to Manne, is about ISPs deciding what content they provide customers. “It doesn’t have anything to do with the bits themselves,” he said.

Kavanaugh cited another reason, though, for opposing net neutrality. He said that the FCC’s initiation of the rule without authorization from Congress also rendered it unlawful. That position, according to Manne, is what could possibly pit Kavanaugh against regulations of data from the FCC and other agencies.

Even if data privacy regulations are struck down, Bambauer said, the biggest companies would still be held accountable. “They also have reputations to maintain, and that I think often matters more than the law on the books,” she said. “The court of public opinion can be much more punishing than regulators’ fines.”

That said, Facebook reached its all-time high in the stock market this week — four months after the Cambridge Analytica scandal came to light.

Disclosure: Comcast is the owner of NBCUniversal, parent company of CNBC and CNBC.com.

Source: Tech CNBC
Trump's SCOTUS nominee thinks ISPs have First Amendment rights, which could hurt privacy laws

Comments are closed.