Jackson Faces Senate Judiciary Calls to Interpret Laws Based on Emerging Technologies

Senate Judiciary Committee members pressed Supreme Court nominee Ketanji Brown Jackson Tuesday and Wednesday on how the top court should interpret First Amendment, privacy and child porn statutes to reflect cases involving social media and other technologies. Jackson said during Senate Judiciary’s Tuesday confirmation hearing Congress generally can’t institute government regulation “along viewpoint lines,” calling into question proposals to condition Communications Decency Act Section 230 immunity on online public forums not discriminating against certain viewpoints (see 2203220064).

Senate Judiciary Chairman Dick Durbin, D-Ill., said Wednesday he believes Congress is “partially” to blame for not updating child porn laws to reflect “the changing circumstances” about its distribution, and Jackson is “not an outlier” among federal judges in her sentencing in child porn cases. “We should be doing our job” in Congress by enacting the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (S-3538), which would mandate an update to sentencing guidelines in child porn cases. The measure would also amend Section 230 to expose online platforms to civil liability for violating child sexual abuse material laws, he said. Senate Judiciary advanced S-3538 in February (see 2202100071).

Sen. Lindsey Graham of South Carolina and other Republicans faulted Jackson during the hearings for not factoring the use of a computer and internet to distribute child porn into her sentencing decisions in those cases. “There’s an epidemic of this on the internet,” Graham said Wednesday. “It is not rational to take the venue of choice of child pornographers, the computer, that have 85 million images on it, and not consider that feeding the beast. We’re trying to get people to stop this crap.” Sens. Ted Cruz, R-Texas; Josh Hawley, R-Mo.; Mike Lee, R-Utah; and others pressed Jackson on the issue.

“The guidelines related to child pornography were drafted at a time in which a computer was not used for the majority, if not almost all of these kinds of horrible crimes,” Jackson said. Congress’ direction to courts then was a “rational one" aimed at ensuring the most serious offenders serve the longest sentence, but “in comes the internet” and "with one click you can receive, you can distribute tens of thousands” of images. “You can be doing this for 15 minutes and all of a sudden, you are looking at 30, 40, 50 years in prison,” Jackson said.

Sen. Jon Ossoff, D-Ga., urged Jackson to “remain vigilant about how the emergence of new technologies” affects her interpretation of the Fourth Amendment prohibition on unreasonable law enforcement searches and seizures. “You will have to consider Fourth Amendment claims in light of circumstances that couldn’t have been anticipated at the time of the drafting of the Constitution,” he said. “Constitutional interpretation has already evolved over time to adapt to the reality of new technologies, from phone booths” in the 1960s “to more recent case law involving geolocation data from cellphones.” The “way that virtual spaces are increasingly akin to physical spaces will require the court to consider very complex questions,” so Jackson should “seek technical advice because these are technologically complex questions,” Ossoff said.

It “helps courts” when Congress updates laws to reflect technological change, Jackson said Tuesday in response to a question from Sen. Richard Blumenthal, D-Conn. “Maybe there will be fewer disputes, or easier disputes to resolve," Jackson said: “In circumstances in which statutes have not been updated, I don’t think it’s surprising to note that there are disputes about the meaning of the statute, about how it applies.”

“We are trying to upgrade the law and update it to give parents tools to have greater visibility as to what their children are doing and to give parents and children tools to protect them against some of the bullying, and eating disorder content, even suicidal and substance abuse stuff that they are driven to see,” Blumenthal said. He invoked his Kids Online Safety Act (S-3663), which would allow minors to “opt out of algorithmic recommendations" and mandate that platforms “enable the strongest settings by default” (see 2202160055).

Durbin asked Jackson Wednesday how she would interpret the First Amendment’s original wording “and make sure it is relevant” in “the reality of” the 21st century. “If more people are relying on Facebook and Twitter for information … how do we rationalize” that those platforms can tell someone like former President Donald Trump “you cannot publish here,” Durbin asked. A court examining constitutional interpretations should look “at the facts and circumstances of the particular case, and the text and principles of the Constitution in light of the times in which they were written, and analogizes to present day,” Jackson said.