Blumenthal Questions Judge Ketanji Brown Jackson About Need to Update the Law to Account for Modern Technology on Second Day of Supreme Court Nomination Hearing

[WASHINGTON, D.C.] – U.S. Senator Richard Blumenthal (D-CT), a member of the Senate Judiciary Committee, questioned Supreme Court nominee Judge Ketanji Brown Jackson about the challenges of applying outdated law to evolving technologies during yesterday’s nomination hearing. Blumenthal discussed these challenges in the context of the youth mental health crisis exacerbated by social media and emphasized the need to pass the bipartisan Kids Online Safety Act that he is leading with U.S. Senator Marsha Blackburn (R-TN) as an important update of the law in light of tech’s harms to kids.

“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,” stressed Blumenthal. “Senator Blackburn and I have introduced a bipartisan measure, the Kids Online Safety Act, that will provide a more modern solution to a modern problem, to update the law to account for the role of social media in our ongoing and aggravating mental health crisis in this country. Do you agree that it helps the Supreme Court, and judges in general, to do their job when Congress updates our statutes to account for technological change” 

Judge Jackson agreed, stating: “The role of the court is to interpret statutes when there are disputes related to the statutes. And, 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, and so, to the extent that Congress undertakes to make amendments and make the changes, I think it helps courts, maybe there will be fewer disputes, or easier disputes to resolve.”

The video of Blumenthal and Jackson’s exchange is available here and the transcript is copied below:

Blumenthal: You’ve mentioned in your previous testimony the challenges of applying the law to evolving and new technologies. Obviously the internet raises exactly those questions. Congress passed the Electronic Communications Privacy Act in 1986, when the internet was barely recognizable, it was nascent, just starting. And now our nation faces a mental health crisis. It is partly aggravated by the pandemic, the isolation and anxiety that has resulted from it, but also by the internet and by the tech platforms that drive toxic content at children as a result of these black box algorithms that nobody really understands. Literally no one understands because the tech platforms want to keep them secret. And 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. Senator Blackburn and I have introduced a bipartisan measure, the Kids Online Safety Act, that will provide a more modern solution to a modern problem, to update the law to account for the role of social media in our ongoing and aggravating mental health crisis in this country. Do you agree that it helps the Supreme Court, and judges in general, to do their job when Congress updates our statutes to account for technological change? 

Jackson: Thank you, Senator. The role of the court is to interpret statutes when there are disputes related to the statutes. And, 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, and so, to the extent that Congress undertakes to make amendments and make the changes, I think it helps courts, maybe there will be fewer disputes, or easier disputes to resolve.

Blumenthal: Easier disputes to resolve in the sense that -- and I've seen it happen -- a judge will say, I don't know what Congress meant to do in this kind of situation, because this law was written at a time when none of this stuff now existed. I'm sure you've faced that situation. I think it's true of social media and the dangers to children as a result of the toxic content that they often find and often seemingly are addicted to use again and again and again because it's part of the business model of those social media and Big Tech platforms.

Jackson: Yes, I have -- I have faced the situation. One of my cases, the Alliance of Artists and Recording Companies vs. General Motors is a case that I ended up writing a couple of opinions about. It involved a statute of Congress related to digital recording audio devices and whether or not royalties were required for the purchase of those kinds of devices, and it was enacted at a time in which recording technology was at a different stage than it is now. And disputes arose that came before me regarding whether or not to apply the royalty requirement in that statute to modern recording devices, and in particular the recording devices that are now in automobiles – when you take your CD and put it in your own car and record on to the hard drive of your car, is that the same thing as putting your CD in one of those machines that records from CD to CD and you give the second recording to all of your friends. That was what the statute was originally meant to cover, and the question was whether recording to your own car's hard drive counted, and it was a very interesting interpretive excise, but again, it was the kind of thing in which I was focused on trying to ascertain what, based on the text of the statute and the definitions in the statute, what Congress intended this statute to cover.

Blumenthal: And cars, other devices, appliances at home collect huge amounts of data, don't they, and as consumers, we feel we own that data. It's ours. But it can be bought and sold, exchanged and mined in a way that right now consumers have no consent over. And it enhances the dominance of just a few of those tech companies, just a few of the corporations. Corporate power is emboldened and enabled in many respects by the amount of data they collect.  

-30-