a16z Podcast - a16z Podcast: Tech Policy and the Courts

Episode Date: May 22, 2017

Discussions and headlines around tech policy tend to be dominated by what the President and the White House (aka the executive branch of the government) and what the Senate and House of Representatives (aka the legislative branch) are saying and doing. But it’s the judicial branch — the courts — that often gets the final say on key technology policy questions of the day… Like encryption, among many others. And now, there’s a new Supreme Court justice in town (Neil Gorsuch, who was sworn in last month) — how does that change judicial decision making around tech policy? Finally, is the growing trend of tech companies writing and signing amicus briefs (or otherwise engaging with the courts) for high-profile policy issues a good or bad thing for their employees, shareholders, and others? One thing is clear, though: The tech sector is getting more and more involved in policy issues, and is arguably becoming a “fourth branch” of government (or perhaps even a “fifth estate”) with its own checks and balances. Or so argue the guests in this episode of the a16z Podcast: Karen Dunn, partner at Boies Schiller Flexner (who has also been a consultant on the TV show House of Cards); and Erin Murphy, partner at Kirkland & Ellis in Washington, D.C. (recently recognized by National Law Journal as “a rising star”); in conversation with Ted Ullyot, who heads up Andreessen Horowitz’ Policy and Regulatory Affairs operation (and was formerly in both industry, as a general counsel at Facebook, and government, himself). The discussion took place as part our annual a16z Tech Policy Summit, in Washington, D.C., earlier this month.

Hi, everyone. Welcome to the A6NZ podcast. We talk a lot about tech policy issues in the news and elsewhere, but we tend to focus only on what the president and the White House, also known as the executive branch, as well as what the Senate and House of Representatives, aka the legislative branch, are saying and doing. But when it comes right down to it, many technology policy issues will ultimately be resolved by the courts, the judicial branch, in some cases going all the way up to the Supreme Court. So in this episode, recorded as part of the annual A6 and Z tech policy summit that took place earlier this month in Washington, D.C., we discuss how the courts could decide today's big tech issues. We briefly touch on one such top of mind issue encryption, and

finally, we discussed tech companies increased engagement in high-profile policy battles of all kinds, for example, by writing and signing amicus briefs, to how the tech sector is becoming its own powerful branch of sorts. Joining us to have this conversation, we have Karen Dunn, partner at Boy Schiller-Flexner in Washington, D.C. previously she served in all three branches of government and currently focuses her practice on high-profile litigation and trials as well as crisis management, and she's also been a consultant on the TV show, House of Cards. And then we have Aaron Murphy, partner in the Washington, D.C. office of Kirkland and Ellis. Her practice focuses on Supreme Court, appellate, and constitutional

litigation. She's argued three cases before the Supreme Court, including a landmark campaign finance decision, and she was recently recognized by National Law Journal as a rising star. The conversation is hosted by A16Z's Ted Elliott, who heads up our policy and regulatory affairs team, and was formerly general counsel at Facebook, and before that was a lawyer in D.C., including serving in the George W. Bush White House. Oh, and all three of them have clerked for different Supreme Court justices, and getting into the head of our new recently confirmed justice is where the conversation starts off. Erin, Karen, thanks for being with us. So let's jump into some of the discussions here. As we think about tech policy and how that's going to come out of the courts,

in particular, in the federal courts and at the Supreme Court, we have a new Supreme Court as of whatever it is two, three weeks ago now, we're back to nine. So Justice Gorsuch has now been confirmed, and the question is now that we've got the potential for not just equally divided courts, but an actual 5-4 majority on some of these questions. Would love any insight that the two of you have

about how the court in its current composition is likely to come out on significant tech issues, and in particular, is there anything in Justice Gorsuch's background as a 10th Circuit judge deciding some tech cases, that could give us a hint on this. Erin, do you want to get some thoughts on that? Sure, absolutely. First, thank you all for having me here.

It'll be interesting to watch this area as will be interesting to watch a lot of areas with a new member of the court. You know, there's many ways in which I think people think that Justice Gorsuch will look a fair amount like Justice Scalia, but there's always subtle differences and things are always a little bit more complicated than that.

And one of the particular areas in which Justice Scalia and, Some of his conservative colleagues on the court didn't always quite see eye-to-eye were in some of these privacy issues, particularly I'm thinking Fourth Amendment issues, search and seizure issues. Sometimes they'd get to the same result, but through different ways of thinking about it. Justice Scalia is a big fan of looking at things in terms of bright line rules and putting things into neat and easy boxes. I think some of his conservative colleagues take a little bit more of a pragmatic approach, and that really, plays itself out when it comes to something like asking whether there's been a search and a reasonable search, and we've seen this play out a little bit in recent years with cases

dealing with things like using technology in ways that many of us would think of as invading our privacy to some extent. There's so many of those issues to be dealt with still in terms of what kinds of things the government can use technology to do without running afoul of constitutional constraints right now, for instance, the court's thinking about a case about whether searching the cell tower records for an individual qualifies as a search and implicates the Fourth Amendment. So we've got a lot of these issues that are coming up. And I think it'll be very interesting to see if Justice Gorsuch is someone who comes at it with a little bit more of that bright line approach that Justice Scalia did looking for ways to easily apply kind of 18th

century law to modern technology or comes at it a little more like we've seen in particular from some decisions from Justice Alito talking about, you know, well, we have to look at all of this with a recognition that technology has caused our sense of what is reasonable expectations of privacy to change, and we can't kind of blind ourselves to thinking about that when we're thinking about these constitutional questions. So to me, that will be a really interesting area as a lot of these cases are coming up that implicates technology. And Justice Gorsuch had a couple decisions on the Tenth Circuit that indicated he's pretty sensitive to this idea of not reflexively applying old rules to new technology. But when you're on a lower court,

you're bound by what the higher court says, and now he's not bound by anything anyone says. So, you know, it's always hard to read too much into what a then judge said when thinking about how they'll approach things as a justice. Yeah. I agree. Also, I think that the court has shown a recent rather dramatic interest in revisiting the Fourth Amendment in general. And as I read these cases, I don't find their opinions limited in their impact to just Fourth Amendment jurisprudence. Because I think the reaction to the Riley case, which was a couple years ago, which talked specifically about the cell phone and whether you could do a search incident to arrest on the cell phone and get everything in the cell phone, it was finally a moment where people said, oh, my gosh, you know, the Supreme Court understands that I'm carrying in my hand a computer and there's stuff in it that is meaningful to me. And what the tech companies have been saying for a long time, which is my privacy interest, is really important and ought to be protected. So I think that that is very interesting. And the replacement of Justice Scalia with Justice

Gorsuch is particularly interesting because Justice Scalia, who wrote a precursor decision to that Jones, styled it very much as a physical trespass. And it's not completely clear to me that that is how Justice Gorsuch will approach this, because in many ways, it's very obvious at the time to equate physical trespass with the kind of data that isn't physical at all, maybe over. And this is what Erin is talking about, that Justice Alito and Justice Sotomayor, in particular, who had an amazing concurrence in that case, well worth reading, are signaling to the world, which is we have revisit this idea of privacy interests for data disclosed to third parties. We have to revisit the Fourth Amendment. We have to revisit this idea that everything is physical. And I will tell

you, as a former prosecutor, I mean, search incident to arrest in the cell phone. I was shocked that this happened because law enforcement is really reliant on being able to do that. You were shocked by what you were shocked by the court coming out how it did in Riley. Yeah, well, actually Or by the surge itself. You want to do the search. It's a prosecutor you like doing these searches. Well, yeah. I mean, I imagine that the universe of law enforcement is like, oh, my God, are you kidding me with this?

What a hassle to have to write the warrant application. In reality, you probably get the same information. Let's, you know, just be honest, most cases, the warrants are signed. But it made me really think, oh, my gosh, every time that we just got all of this information, maybe we weren't just entitled to do it legally. Maybe this Riley decision is right. Yeah. But I think what the Supreme Court is telling us is that they're starting to think about this.

And mostly it's been through the prism of the Fourth Amendment. Yeah. I think when you look at some of those decisions where the court and certain justice seem to be reconsidering these settled doctrines, it's not exclusively the younger members, but is predominantly the younger members. And that Gorsuch being, whatever he is, 48, 49 years old, has grown up with a lot of this technology to a greater extent than the rest of the court. I think can think about the implications. As your old boss, the chief said in the Riley case, it's, hey, you know, your phone. is very different than just scraps of paper in the wallet. I mean, you've got literally everything

in the phone. And that's, A, you're carrying around basically a filing cabinet with you. B, you're sharing it by necessity with a cloud provider or somebody, you know, some data on the phone, but a lot of it is reachable through there. And that's something that's very new. And I think it takes maybe younger justice to appreciate that. Yeah, you know, I think it's probably, I mean, it's a completely unproven hypothesis on my part. But I would assume that your impacted by whether your children are of the age that they grew up with that kind of technology, which some of them are and some of them aren't. But for one, it impacts your familiarity with the technology, but I think you're just, because most of them are, even the younger

members are of a generation where that's not the technology they grew up with and they may now use it much more than they ever did. But if you've got kids at home who that is the way their world works, I think it would open your eyes to thinking about, okay, we need to be sure we understand what the implications of this are and what it means and what people really are carrying around with them in this phone all the time or what it really means if you're going to be able to triangulate people's locations every moment of their life wherever they are. Yeah, it's important with significant ramifications for settled legal doctrine. Switching gears, I think when many people think about tech and the courts, if you read today,

if you read papers the past few months, I think what you'd think about is tech companies getting involved in these big cases challenging federal policy. And we've seen a bunch of that in the past 100 days. For example, the immigration order. President Trump's immigration order was, first, at minimum, you had every tech company in Silicon Valley, even some venture capital firm signing on to an amicus brief challenging that. And in fact, I think the state of Washington's successful argument pointed to Microsoft

as a source of standing on that. But just to talk about the phenomenon, and this is a new phenomenon. I was general counsel at a internet company, and it was not common, even as recently as, you know, about six, seven years ago to sign on to these reasons. But you really see that. It's not just under this administration. It started happening last administration as well, some of the encryption stuff. Karen, any thoughts on this growing trend of companies to get involved in this almost advocacy, sort of capital A advocacy? Yeah, so I work for a number of tech companies, so I'll just say my views are my own on this topic.

But I have thought about this a lot, and I actually think, you know, I've heard even just today one person, I talked to said, the problem is the regulators can't keep up with the technology, so the answer will be found in the courts. And then somebody else said, well, the courts can't keep up with the technology, so the answer has to be with the policymakers and the regulators. And even if you look at this Alito decision that we're talking about just a second ago, Justice Alito writes, you know, the Fourth Amendment's really a very blunt instrument, so maybe Congress should figure this out for us and give us some direction. And so in thinking about this, I've developed sort of new worldview, which I will unveil here, and wait for it. And we think about courts,

legislatures, you know, the executive. But I really think the fourth branch of government at this point are tech companies. And I think that they have the resources to move fast enough. They have the public reach. I mean, the fact is years ago, it was predictable by some that social movement was going to happen at the hands of tech companies. You know, Facebook for one, I'm going to pander to TED, but that is definitely the case. And so what's going on now is tech companies have an imperative. They're being called upon by their employees and also by consumers. And this is actually being called political consumerism, where it used to be, if you're a company and you sort of stayed neutral, that was the right thing to do. But now,

if you stay neutral, a lot of times it's not at all the right thing to do, and people get very angry at you. So the tech companies are sort of looking around, and they also have values that they're trying to propagate in the world. And the truth of the matter is, I think this is having an enormous effect beyond the bottom line of the companies, and we may become increasingly reliant on the tech sector to push forward things because they understand the technology, they can move rapidly, and because the rest of the branches of government are failing us in this respect. So I think this is a great question. I spend a lot of time working on and thinking about it. I think, frankly, by next year you'll be having a whole panel about how the tech

sector is going to move everybody forward. I think often the company is responding mainly to their employees and the sense of the employee base on some of these big political questions of the day. And to your point on the public end, I think for certain tech companies, maybe their customers are of a pretty consistent political view one way the other. I think the risk is any, I think Facebook has encountered this over the past year that, you know, I don't think it's traceable to the amicus briefs, but it's not only to that,

but there's a sense out there, I think, among many on the right that, well, Facebook is taking sides in big political disputes and you have this thing about the algorithm, you know, whether that's suppressing conservative news. But, you know, company might well look at that and say, listen, I know my employees feel passionately about this, but I don't wanna piss off

a big slice of my consumers. Do you think that's a risk? Yeah, I do. When I think about amicus participation, I mean, there are cases where it's quite obvious that there's a wonderful role for tech companies to play. I think courts are not sophisticated in their understanding of technologies. And a lot of times, parties have limited ability to explain that. And it's wonderful to have briefs that that's the point of amicus briefs to be able to

kind of be someone who's there and has a particularized role to play in the debate. but I don't know that I'm a huge fan of the trend of because of who we are, we have views on anything and everything and everybody better sign on to the brief who's in the industry because the industry supports this view and everyone in it. I think that's probably a bit of an oversimplification of the industry and the employees, and I think it's definitely something that risks turning off some consumers. and I'm not sure at the end of the day, if it becomes a dynamic of the industry is here

to represent a policy view consistently that it's going to represent, I think it diminishes the importance of the briefs to the court because it starts to become more just like how, and you have plenty of groups like that on both sides of the dialogue in cases that you know are going to show up and they're going to file and you know what they're going to say

before you read their brief. And, you know, so I think it's for any industry or any group that, Amicus briefs, I think it's always good to be thinking about. What do we really have to contribute in this case that is the reason that we as an industry have a particular reason to be here and something to say other than just kind of, we happen to be some people who have this view just like any other undifferentiated. And on that, you both have been law clerks. You've seen the process up close. What is your take on how much, if any, influence these industry briefs

have? I mean, it's a leading question a little bit, but can you think of instances in which an amicus brief has actually had a significant impact on a case. Karen, you're suggesting yes. You're refuting my leading question. Yeah. Well, we do both write these. Yeah, yeah, yeah, of course, huge influence. Aaron's Amicus Springs, I mean, huge impact.

Apart from that, you know, I don't think, I mean, it's certainly not, you know. Not dispositive, not the only factor. Or not, you know, frequent. But I can think of some examples, and even in the Supreme Court Health Care case, where amicus briefs have made arguments outside of the party's briefs that have made a difference. I don't think it's the... Judge Posner, for example... I think Judge Posner is on to something when he says it's called friend of the court, not friend of the party.

I think that's, you know, very Posnerish and intelligent. You know, I don't think there's reason not to do that. But I also think for the tech companies, and I'm sure there are people here who can relate to this, you know, the amicus briefs are one example of this in the world. But I think on some level, they have no choice other than to be answerable to some of these issues. The companies don't have a choice. Correct.

So even if it's purely symbolic, they have to speak on the issue. And there's one way to speak, to be counted in this big debate that's going on at the court. Correct. I think there are, well, there are two things. One is they're being called upon to stand up and have a view, particularly if there's a lot of momentum.

But then second of all, frequently, there are players in a universe where they just impact so many people in a way that it used to be only the government had a reach that would impact so many people. And now there are these companies who do. So it's hard to not be responsible to those, basically your employees, your independent contractors, you know, and your consumers. I just think it's tough. I don't think it's an easy choice for these companies, but I think they have to figure out a way to navigate it. Okay. Encryption and Apple FBI. This was a big issue. I think we actually talked about it last year in the tech policy and the courts panel.

At that point, I think Apple versus FBI or Apple versus United States, whatever, is styled. The San Bernardino case had, I think it had just been settled at that point, just been mooted. And then that issue's been fairly quiet for the past year. And then not totally quiet. It's always lurking there. So I think we're going to see a situation at some point in the next year, six months or so where we'll again be at this. So let's go to the Supreme Court. Any thoughts on how the Supreme Court might examine an engagement?

encryption case, my rule on that? That's a great question. And it is hard to know because this issue, as you know, has not been really teed up well enough for them. You worked on this issue, right? Yeah, so I did work on this issue on behalf of Apple, along with my friend, Mark Zolinger, who's there, fact-checking what I say on this. You know, the statutes of play there was the All Writs Act, so 1789.

Talk about an outdated framework. And if that wasn't going to apply, there was a 20-year-old statute that might suffice. and the truth is none of it was equipped for now and part of the question was what's Congress going to do about this and in the end because the pressure was off

the FBI resorted to self-help they broke into the phone themselves the issue did not get to be teed up in the courts and the pressure came off of Congress so nobody did anything similarly in this I don't know if you're similarly following the Alexa murder case where

describe that one just for people haven't read about it So the government had wanted the data in the Amazon Echo. You know, when you say, Alexa, tell me the weather. So Alexa is gathering data while she's sitting there. Listening to you in your house. And Amazon did not want to give this up, and they asserted First Amendment defense. And there's a case where there's a murder had taken place. And the defendant in the murder case, and I got to know more about this because this is a little odd, gave up the information himself.

And that mooted this issue about whether. they could get the stuff that Alexa was picking up in the home. But I think, Ted, you're absolutely right. This is coming. There's no way to avoid it. But I find it really hard to believe it's not coming in a way that's a very focused legal issue, like the FBI San Bernardino case

or like the Alexa murder case. And that's going to happen. And the truth is these statutes are, we are not equipped for this. We're not equipped for this. But Congress is showing no evidence of racing to our rescue to wrestle this to the ground and figure it out either. And I suspect, however the court ends up dealing with it, there will be a lot of language in someone's opinion saying, Congress, please fix all this.

And you saw that in a few of these recent cases of theirs where they're like, look, we shouldn't be figuring this out in the first instance. Let's get some statutes on the books that were written at least in the same decade as the technology that you're asking us to apply the Constitution to because the government can fix some of these warrant problems. and, you know, why don't we get some laws to give a framework here? And I think the court gets particularly frustrated in situations like that where they feel like they're being put in a position of dealing with something that they don't think they should have to be the ones to deal in the first instance with. So I think it will – it's a situation they probably hope to be able to avoid, but Congress doesn't look to be trying to resolve these issues quickly

unless it absolutely has to. Yeah, I think once you get back to the legislative sphere, then it's an issue that is – it's one of those that actually that we talked about the outset of one that's – It's not bipartisan, but it confounds partisan lines. You have Democrats on both sides, Republicans on both sides of that issue, and it's not clear where that goes in the Congress. Well, listen, we are at time here for this audience of tech policy folks and a lot of tech company

representatives here, I think, to be described as the new fourth branch of government. It's a good takeaway. It comes with a lot of responsibility. Maybe the fifth estate, because it could press. Anyway, fascinating discussion. And again, I think this is something that for the non-lawyers in the room, I continue to watch this, that a lot of the big questions will keep ending up in the courts. So look for Karen and Aaron to be among those arguing some of these key cases up at the Supreme Court over the years to come.

And please join me in thanking the two of them for appearing today. Thanks. Thank you.