November 1, 2005 | By Kurt Opsahl

Judge Alito?s Decisions on EFF Issues

Bush's selection of conservative Judge Samuel A. Alito Jr. for the Supreme Court is doubtless going to lead to an ideological battle in the Senate, focusing on Alito's position on hot button issues like abortion rights, federalism, and gun control. Given the divisiveness of these issues, there is a substantial chance for a Democratic filibuster to block confirmation of Alito.

Many organizations have looked over Alito's fifteen-year record on the bench, and are providing thorough analyses of his position on these divisive issues. Below, we will examine some of on Alito's history with other issues nearer to our organizational heart.

(Read more after the jump.)

First Amendment: The First Amendment Center has written a detailed analysis of Alito?s 20 majority opinions on the First Amendment, concluding ?that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.? Overall, this is not a terrible track record for the First Amendment, though there is little to show how this would apply to the Internet.

EULA and Contracts: Ideoblog has written a summary of some of Alito?s contract decisions, concluding ?Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.? This suggests he may be supportive of EULA contracts.

Copyright: There is not much in the way of copyright decisions from Alito. One case that Alito actually wrote, Southco Inc. v. Kanebridge Corporation, 390 F.3d 276 (3d Cir. 2004) addressed the copyrightability of a system by which Southco numbered its parts. Alito?s majority en banc opinion held that the specific numbers were not protectable because assignment of particular numbers based on Southco?s system, finding "the creative spark... utterly lacking in [a part's numbering system, and thus] these numbers are examples of works that fall short of the minimal level of creativity required for copyright protection.? Alito also opined that the numbers are too short for copyright protection. This is the right decision, but does not address any of the very hard issues that can arise in copyright law.

  • Laura Quilter summarizes some of the copyright decisions Alito participated in, but did not write.
  • William Patry provides a more detailed discussion of the Southco opinion.
  • Donna Wentworth has reviewed some of the blogs commenting on Alito?s copyright jurisprudence.

In the end, for copyright law, Alito remains more or less a mystery.

Wiretaps and Surveillance: There is not much from Alito on Internet surveillance and privacy. In Voicenet Communications, et al v. Pappert, 126 Fed. Appx. 55 (3d Cir. 2005), Alito was on a panel that held that the government?s continued retention of servers seized from Internet service providers did not chill the First Amendment interests of subscribers whose data was on the servers. The court, which did not publish the opinion, was satisfied by the government?s ?promise not to access subscriber records without notifying Voicenet/OTI, which may then seek an injunction.?

In United States v. Williams, 124 F.3d 411 (3rd Cir. 1997), Alito held that video surveillance of a gambling operation was reasonable under the Fourth Amendment and that it satisfied the requirements of federal wiretapping law. Alito correctly acknowledged that ?it is sometimes appropriate for a court to balance ?the public interest and the individual's right to personal security free from arbitrary interference by law officers,?? but also found that a judicial office may not ?properly take into account his or her personal opinion regarding the need for or the importance of the criminal provisions that appear to have been violated.?

Overall, Alito?s Fourth Amendment opinions are following the admittedly bad Supreme Court precedents. However, they do suggest a sympathy for the government, which is not surprising considering Alito?s many years working for the Department of Justice prior to becoming a judge.

Impact Litigation: Alito?s opinions in impact litigation cases, such as his majority opinion in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999) (upholding city hall holiday display) and dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991) (supporting abortion spousal notification requirement), suggests that Alito is not particularly friendly to using the courts to create changes in the landscape of the law.


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