Americans hoping for stronger data privacy protections may find a foe in Brett Kavanaugh, President Donald Trump’s nominee to replace Supreme Court Justice Anthony Kennedy. As a justice on the U.S. Court of Appeals for the D.C. Circuit, he dissented against his colleagues’ 2017 decision to uphold net neutrality, the Obama-era regulation requiring internet service providers such as Comcast, Verizon and AT&T to treat all internet traffic as equal. Net neutrality violates the First Amendment, he said, because the regulation “infringes on the internet service providers’ editorial discretion.” It is not entirely clear where Trump's administration stands on regulation of big tech. Although the Federal Communications Commission under Trump has net neutrality, on Thursday the Department of Justice appealed a federal judge's June decision allowing AT&T to acquire Time Warner. If Kavanaugh is approved, he would be the second-youngest Supreme Court justice, at the age of 53. He would likely have a hand in decisions regarding data regulation far beyond Trump's administration. Some legal experts believe Kavanaugh’s First Amendment argument against net neutrality could be applied to data more broadly, and possibly pit him against current and potential data privacy regulations. According to Christopher Sprigman, a law professor at New York University who authored an amicus brief submitted to the D.C. Circuit in favor of net neutrality, Kavanaugh's argument that ISPs have a First Amendment right to determine what data they transmit implies that the data itself is speech. If that is the case, he said, then the providers could argue that selling user data to advertisers counts as “speech” also protected by the First Amendment. If that argument were accepted by the court, there would be an additional hurdle to enacting data privacy regulation. “The government would have to show an important interest that they are pursuing narrowly,” Sprigman said, “and that just makes it much more difficult for the government to regulate it.”

Data privacy laws are ripe for challenge

If Kavanaugh takes this position, it could spell trouble for state efforts to legislate data privacy protections if they were challenged in the Supreme Court. Last month, California passed the country’s on data privacy. Starting in 2020, the law will require companies with data on more than 50,000 people to let consumers view data about themselves, request deletion of data, and opt out of having their data sold to third parties. Major tech companies like Google and Amazon opposed the measure.