EPIC Analysis: Supreme Court Nominee Amy Coney Barrett’s Record on Privacy

October 14, 2020

Supreme Court nominee Amy Coney Barrett has a mixed record on Fourth Amendment and Article III standing issues but an alarming view of the federal statute that protects consumers from robocalls, according to an EPIC analysis of Judge Barrett’s past writings. Barrett—a judge on the Seventh Circuit U.S. Court of Appeals—has twice ruled that evidence should be excluded from a criminal case because police had violated the Fourth Amendment: once because officers stopped a car on an unreliable tip and once because officers did not obtain valid consent to search an apartment. But Judge Barrett also stated that the exclusionary rule is “strictly limited,” refusing to suppress evidence collected through a warrantless border search of traveler’s cell phone and obtained on the basis of an overbroad warrant. In Gadelhak v. AT&T Services—a case in which EPIC filed an amicus brief—Judge Barrett interpreted the federal robocall statute narrowly, allowing companies to use many types of autodialing equipment without penalty. If Judge Barrett is confirmed to the Court before the end of November, she will hear Facebook v. Duguid, a similar case that concerns the federal robocall ban. Judge Barrett’s record on Article III standing—a doctrine that affects the right of consumers to bring suit for privacy violations—is somewhat better. Although Judge Barrett has twice ruled that consumers lacked standing, she has also underscored that standing is separate from the merits of a plaintiff’s claims and ruled in Gadelhak that invasive robocalls provide a valid basis for suit. EPIC regularly reviews the privacy records of Supreme Court nominees, including Justice Kavanaugh, Justice Gorsuch, Justice Kagan, Justice Sotomayor, Justice Alito, and Chief Justice Roberts.

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