Judge Brett Kavanaugh decided against net neutrality and for NSA surveillance

Judge Brett Kavanaugh's past rulings suggest a reliably conservative voice on tech. His addition to the highest court in the country could vastly reshape the digital landscape. 

Perhaps most concerning for supporters of net neutrality, Judge Kavanaugh issued an important dissent as part of a hearing on the FCC’s 2015 net neutrality order, which put in place consumer protections for internet users. Judge Kavanaugh wrote that the “net neutrality rule is one of the most consequential regulations ever issued,” but that it was “unlawful and must be vacated” for two reasons. The first was simply that the FCC was not clearly granted the authority to make the rule, and thus overstepped by implementing it, Judge Kavanaugh argued. Additionally, Judge Kavanaugh wrote, restricting the actions of internet service providers amounted to intruding on their “editorial discretion.” As a result, he argued, the net neutrality rule violated First Amendment protections. Despite Kavanaugh’s dissent, the court ruled against a petition for a re-hearing, supporting the FCC’s authority on the issue.

Judge Kavanaugh also wrote in favor of a decision on the US government’s metadata surveillance efforts spearheaded by the NSA. As part of a challenge to the program, Judge Kavanaugh wrote that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” Judge Kavanaugh argued that the collection of records was not unlawful because the data was obtained through a third party, and would not constitute an “unreasonable” search based on past case law.