Doug Bernard: What are the key issues that are facing this court regarding digital privacy and security; either presently before this court or very likely to soon come before it?
Marc Rotenberg: Well we've seen just in just the year that the Supreme Court has taken a great interest in privacy issues. In fact there are four privacy cases on the Court's docket in the last four months. One of them about the privacy of people who sign petitions, whether those names should be disclosed to the public, and the other was about the privacy of text messages. So our sense is that privacy is becoming and increasingly important issue for the Supreme Court.
Doug Bernard: What do you think is this Court's current balance when it comes of issues of digital privacy. Which way do they tend to lean at present?
Marc Rotenberg: You know, privacy is a fascinating issue, partly because the political lines are not always clear. You have of course traditional social and political issues like the regulation of business or the right to abortion for example where you can look at the Supreme Court and pretty much predict how a certain justice is likely to vote. But if you look at some of these privacy cases for example it's not at all clear how individual justices might vote; on whether a person who signs a petition, for example, should have their name disclosed. And that also makes the discussion I think very interesting. People tend to be a little more open-minded around these issues and there's a real opportunity I think to persuade the court about what good privacy decisions might look like.
Doug Bernard: I wonder to what degree you think, if I may, that these justices get it? I mean, privacy issues in the real world are one thing, but privacy issues when it comes to this digital, cyber-sphere may be completely another. Do you feel confident that all of the justices sitting on this court really understand the web?
Marc Rotenberg: Yeah, that's really an excellent question, and I've been involved with these cases for quite some time, many of which have gone to the Supreme Court. And I think for the most part they've actually done a pretty good job. Keep in mind of course that when judges look at these kind of disputes they can involve very complicated areas of law, very complicated areas of technology - that's not unique to the Internet, it can be everything from the design of an airplane to a complex financial instrument. So the judges and the justices need the ability to listen carefully to the experts, to try to weigh the arguments that both sides are making, and then make a decision about who's made the better argument when they decide these cases. That's happening with the Internet decisions as it is with other areas of the law.
Doug Bernard: So, what has Elena Kagan written and said in the past about these issues that may suggest what she may do as a justice if her nomination is successful?
Marc Rotenberg: Well it's an excellent question; in fact we're going right now through the records that have been disclosed by the White House. She worked for several years as a deputy advisor to President Clinton and wrote memos and made recommendations in many areas. We're trying to find some statements specifically on the Internet or privacy, we haven't found much yet, but that doesn't mean that we won't as we keep going.
We are interested in the fact that she made a very interesting comment in an article that she wrote about the nomination process. And this was long before she herself was nominated to the court. She had spent some time studying the process and concluded that it was important that the nominee be asked questions about critical issues, and she included privacy as one of the critical issues. So we think it's perfectly appropriate for her to be asked about this topic, since she actually recommended that.
Doug Bernard: So what are you going to be listening for in these hearings and what are you hoping to hear once these actual hearings begin?
Marc Rotenberg: Well I think it's appropriate to ask the nominees about their views on some of these critical issues; not of course about an actual dispute that's before the court because that would be unfair, you might be pre-judging an outcome. But there's a lot of space in there - between saying not very much and talking about a specific matter - and that's the space that we hope the committee members will explore.
They should ask her about the impact of new technologies and how do we safeguard our constitutional freedoms. We just had a big dispute around Facebook and a lot of people are talking about how privacy law could help protect users and allow companies to develop innovate services. I think these are great questions for a Supreme Court nominee and I hope the members of the committee ask them.
Doug Bernard: Finally...you served on the Judiciary Committee for Senator Pat Leahy. If you were still on the staff how would you be prepping your member about this nomination hearing and the issues that should be brought forward?
Marc Rotenberg: Well I would try to be forward looking. This is one of the areas in fact where there's not that much law, there aren't these bright battle lines that separate people. There's actually a real opportunity I think to look ahead and begin a conversation with the nominee and in fact the American public about the role of law and safeguarding fundamental American values in this new era of technology. I think that would be a wonderful series of questions to ask, I think it's likely to draw in other members of the committee as well, and we're hoping that it happens.
Marc Rotenberg will be sharing thoughts about the Supreme Court nomination of Elena Kagan on Twitter; you can follow him at twitter.com/privacy140