Given the ongoing legal struggles to preserve digital freedom, it is difficult to underestimate the importance of carefully vetting President Bush's Supreme Court nominee, Judge John G. Roberts. If confirmed, Judge Roberts will have extraordinary power to shape the future of digital rights, for good or ill. Unfortunately, Judge Roberts' brief judicial record offers little guidance as to how he would rule on key digital rights issues as a Supreme Court Justice. Nevertheless, we think a few items in the record are worth noting.
Privacy and Free Speech - Verdict: The Jury Is Still Out
Judge Roberts was a member of the DC Circuit Court of Appeal panel that heard the appeal in RIAA v. Verizon. In this case, the Recording Industry Association of America (RIAA) used a controversial subpoena provision in the 1998 Digital Millennium Copyright Act (DMCA) to demand that Verizon Internet Services reveal the identity of a Verizon subscriber who allegedly used KaZaA peer-to-peer software to share music online. Verizon refused to divulge the subscriber's identity and the dispute made its way to the DC Circuit. EFF filed a friend-of-the-court brief supporting Verizon. During oral arguments, Judge Roberts questioned both sides closely, appearing unfazed by the technological issues involved.
Interestingly, as Wired noted at the time, Roberts compared music file-sharing to leaving open the door to one's personal library: "Somebody could come in and copy one of my books but that doesn't make me liable for copyright infringement." A good sign.
Verizon won, but the Court sidestepped crucial speech and privacy questions, basing its decision on a narrow statutory interpretation. So while we're happy with the outcome, the decision doesn't tell us much about Judge Roberts' ideological positions.
Copyright and the Public Domain - Verdict: We Lose
Roberts' judicial record on copyright is more disturbing. Just a few months before his nomination, Roberts helped decide Luck's Music Library, Inc. v. Gonzales [PDF]. In that case, sellers of public-domain materials challenged the constitutionality of a Uruguay Round provision that removed some foreign works from the public domain. The DC Court of Appeals ruled against the sellers and the opinion, written by Judge Stephen Williams, would chill the heart of any copyfighter: "Plaintiffs are correct that the Clause 'contains both a grant of power and certain limitations upon the exercise of that power.' ... But they are wrong that the Clause creates any categorical ban on Congress's removing works from the public domain."
Government Regulation of Technology - Verdict: The Jury Is Still Out
In Consumer Electronics Association v. Federal Communications Commission [PDF], the DC Circuit upheld a FCC Order requiring all new televisions with 13-inch (or larger) displays contain a tuner capable of receiving and decoding digital television signals. As others have noted, this opinion, among others, may signal a worrisome tendency to defer to the FCC. While such deference may be appropriate in some contexts, we hope that a Justice Roberts would give careful scrutiny to FCC efforts to regulate new technologies.
We Need Another Cup of Tea
To sum up our findings: the record is both sparse and mixed. It's a good sign that Judge Roberts is not afraid to grapple with new technologies and the legal problems they raise. At the same time, he made a really bad call on a crucial public domain issue.
We'd like to be able to say more, but with only two years as a judge, Roberts doesn't have enough of a record for us to predict whether he will be a help or a hindrance to digital freedom fighters. Keep your fingers crossed.
(For more tea-leaf reading, see William Patry's Judge Roberts and Copyright.)