Judge Ketanji Brown Jackson on Privacy and Transparency

This week, the Senate Judiciary Committee conducted confirmation hearings for the nomination of Judge Ketanji Brown Jackson to serve as the next associate justice of the U.S. Supreme Court. The hearings featured two days of questioning of Judge Jackson along with expert testimony and statements by Committee members (day 1, day 2, day 3, day 4). On Monday, EPIC submitted a letter to the Committee urging senators to question Judge Jackson about key privacy and open government issues she is likely to confront as a justice, including the application of the Freedom of Information Act, Article III standing, and the interaction of the Fourth Amendment and emerging technologies. As a supplement to that letter, we provide the following overview of Judge Jackson’s background, her relevant rulings as a judge, and additional details about her confirmation process.

EPIC’s Interest

EPIC regularly files amicus briefs in the U.S. Supreme Court, and EPIC routinely shares its views with the Senate Judiciary Committee regarding nominees to the Supreme Court, including Justice Barrett, Justice Kavanaugh, Justice Gorsuch, Justice Kagan, Justice Sotomayor, Justice Alito, and Chief Justice Roberts.

Although EPIC takes no position for or against a judicial nominee, we urged the Senate Judiciary Committee to scrutinize Judge Jackson’s views on government transparency and the withholding of information from the public by federal agencies; on the respective roles of Congress and the judiciary in deciding which rights—including privacy rights—may be vindicated in federal court; and on the meaning and enforceability of the Fourth Amendment in view of ongoing developments in technology and the law.

Judge Jackson’s Background

On February 25, 2022, President Joe Biden nominated Judge Ketanji Brown Jackson to replace Justice Stephen Breyer as an Associate Justice of the United States Supreme Court. Judge Jackson was born in Washington, D.C. and later moved to Miami, FL. The daughter of public school teachers, she attended schools in the Miami-Dade Public School System. While in preschool, Judge Jackson sat “next to her father in their apartment as he tackled his law school homework—reading cases and preparing for Socratic questioning—while she undertook her preschool homework—coloring books.” Judge Jackson graduated magna cum laude from Harvard University before graduating cum laude from Harvard Law school, where she was an editor of the Harvard Law Review.

Since her law school graduation, Judge Jackson has served many different roles in the U.S. legal system. She held three clerkships after law school graduation, including a clerkship for Justice Stephen Breyer. She worked as a federal public defender and would be the first former federal public defender to serve on the Supreme Court if confirmed. Judge Jackson later served as the Vice Chair of the U.S. Sentencing Commission from 2010 2014. Judge Jackson was confirmed to serve as judge on the U.S. District Court for the District of Columbia in 2013, a role which she fulfilled until her confirmation to the U.S. Court of Appeals for the D.C. Circuit in 2021. If confirmed to the Supreme Court, Judge Jackson will be the first Black woman to serve on the Supreme Court.

Cases and Issues

During her time on the bench, Judge Jackson has issued decisions in over 570 cases, including several key matters concerning open government and privacy.

FOIA and Open Government

Judge Jackson has presided over scores of open government cases under the Freedom of Information Act (FOIA) during her tenure as a federal judge. Our open government laws are essential to ensure that citizens know what their government is up to and to facilitate oversight. But agencies, especially those involved in law enforcement and homeland security programs, frequently assert broad exemptions and argue that they are not required to disclose the details of their programs. EPIC focuses on open government, routinely uses the FOIA to ensure access to government records, and maintains a robust FOIA digital library. Below is a brief summary of a few of Judge Jackson’s previous open government cases.

In Sheridan v. U.S. Off. of Pers. Mgmt., 278 F. Supp. 3d 11 (D.D.C. 2017), a pro se Plaintiff sued the U.S. Office or Personnel Management seeking a declaration that OPM’s failure to make a determination on whether to comply with his Freedom of Information Act (“FOIA”) request within 20 working days, to respond to his administrative appeal within 20 working days, and to provide his requested records violated the FOIA. Judge Jackson determined that the records were exempt from disclosure pursuant to Exemption 7(E), granting OPM’s motion for summary judgment and denying Plaintiff’s cross-motion for summary judgment.

OPM serves as the human resources provider for the executive brand and federal agencies, conducting over two million background investigations a year. OPM uses the e-QIP system to allow applicants to submit various background investigation forms, and although blank versions of these forms are publicly available, applicants can only submit the forms through the e-QIP at the invitation of a sponsoring agency. The plaintiff submitted a FOIA request to OPM, seeking “[c]omputer files containing the source code to the Office of Personnel Management’s ‘Electronic Questionnaires for the Investigations Processing (e–QIP)’ application and computer files or hardcopy records containing design and operations documents for e–QIP.”

The FOIA “mandates that an agency disclose records on request, unless they fall within one of nine exemptions.” Exemption 7(E) prevents from disclosure certain “‘records or information compiled for law enforcement purposes’ if such disclosure might risk compromising an agency’s law enforcement function.” As Judge Jackson explained, “the text of Exemption 7(E) appears to permit an agency to withhold records only if certain criteria are satisfied: (1) the records were ‘compiled for law enforcement purposes,’ (2) production of the records ‘would disclose’ either ‘techniques and procedures for law enforcement investigations or prosecutions’ or ‘guidelines for law enforcement investigations or prosecutions[,]’ and (3) ‘such disclosure could reasonably be expected to risk circumvention of the law[.]’” 

Judge Jackson determined that OPM’s background investigative function was to ensure that a potential employee had not broken the law and to determine there were no law enforcement issues with the potential employee. She further determined that the e-QIP system’s source code reveals how the data is analyzed, including what type of information may trigger further investigation, and that these records would reveal law enforcement “techniques and procedures.” In Judge Jackson’s view, revealing this information could have allowed applicants to circumvent the law by discovering information about how the background investigation forms were processed by OPM. Accordingly, she decided that OPM had met its burden and that the e-QIP source code manuals could be withheld under Exemption 7.

In EPIC v. Dep’t of Just., 13–cv–1961 (D.D.C. filed 2013), Judge Jackson issued three separate rulings concerning EPIC’s FOIA request for records relating to a national security program under the Foreign Intelligence Surveillance Act that involved the surreptitious use of pen and register tap-and-trace devices. EPIC sought records including the total number of orders for pen registers or trap and trace devices granted or denied and installed; information provided concerning the uses of pen registers and trap and trace devices; and records used in preparation of the materials.

After initially denying EPIC’s motion for a preliminary injunction in the case, she later ordered the DOJ to provide additional information justifying its decision to withhold certain records from EPIC. In her third and final ruling, following an in camera review of the records at issue, Judge Jackson determined that the DOJ had properly invoked Exemption 3. Exemption 3 allows an agency to withhold records where a statute “‘specifically exempt[s]’ the requested information from disclosure, so long as that statute either ‘requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue[,]’ or ‘establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]’” Judge Jackson also opined that the DOJ could withhold the records pursuant to Exemption 1, which allows “an agency to withhold information that is ‘specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy’ and is ‘in fact properly classified pursuant to such Executive order[.]’” Judge Jackson further explained that the government was required to explain certain inconsistencies in its redactions.

In Muckrock, LLC v. Cent. Intel. Agency, 300 F. Supp. 3d 108 (D.D.C. 2018), Judge Jackson ruled that a plaintiff had standing to allege that the CIA had unlawfully adopted a policy under which the agency would refuse to process any FOIA request for email records that did not provide the specific senders and recipients, time frame, and subject. In so ruling, Judge Jackson emphasized “that an agency’s failure to produce documents that a plaintiff requests under the FOIA—for whatever reason—qualifies as an injury-in-fact that is sufficient to give rise to standing to bring a FOIA claim in federal court.” After analyzing the merits of Muckrock’s case, she held that the CIA’s email policy violated the FOIA.

Standing

The Supreme Court has ruled in several significant cases in recent years concerning the ability of individuals to sue corporations for violations of their rights under federal statutes. Specifically, the Court has considered what individuals are required to prove in order to establish Article III standing to sue in cases concerning their digital privacy rights. Most recently, in Transunion LLC v. Ramirez, the Court held that a group of individuals could not sue a credit agency for illegally marking them as posing a threat to national security. In her time as judge, Judge Jackson has ruled in several cases concerning Article III standing and a federal court’s jurisdiction to resolve civil actions.

In Austin-Spearman v. AARP & AARP Servs. Inc., 119 F. Supp. 3d 1 (D.D.C. 2015), a putative class of internet users alleged that their personal data was obtained by third parties after they used the defendants’ website in violation of the D.C. Consumer Protection Procedures Act (DCCPPA) and in breach of contract. The named plaintiff, who had paid $43 to access defendants’ exclusive online marketplace, alleged that the website permitted third parties to collect personally identifiable information about her. In her Article III standing analysis, Judge Jackson opined that the plaintiff had not suffered an economic injury and that the defendants’ alleged violation of their own Privacy Policy did not injure plaintiffs, as compliance with the policy was not a term of the contract between plaintiffs and defendants.  Even if it were, Judge Jackson concluded, it was not such an integral part of the contract that the alleged violation deprived plaintiffs of the benefit of their bargain.

In Equal Rts. Ctr. v. Uber Techs., Inc., 525 F. Supp. 3d 62 (D.D.C. 2021), a non-profit civil rights organization plaintiff sued Uber for allegedly discriminating against individuals who used non-foldable wheelchairs in violation of the Americans with Disabilities Act and the D.C. Human Rights Act. Judge Jackson concluded that the plaintiff had associational standing to bring legal claims on behalf of its members. She explained that “an organization has more than one option with respect to establishing Article III standing: it may bring a claim on behalf of its members under an ‘associational’ theory, or it may bring the claim on behalf of itself, under an ‘organizational’ theory of standing.” To establish associational standing, the organization must plausibly allege that “‘(1) at least one of [its] members has standing, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires the participation of an individual member in the lawsuit.’” She reasoned that the organization has established standing because one member had standing in her own right and that the plaintiff had suffered an injury-in-fact because the plaintiff had been deterred from using defendant’s app as a result of the defendant’s discrimination. Because the Equal Rights Center had associational standing, Judge Jackson did not reach the question of organizational standing.

In Cause of Action Inst. v. Internal Revenue Serv., 390 F. Supp. 3d 84 (D.D.C. 2019), Judge Jackson emphasized the difference between a court’s jurisdiction to hear a case and the merits of the case—a point of frequent confusion in Article III standing analyses. After the Cause of Action Institute sued the Internal Revenue Service under the FOIA, the IRS argued that the court did not have subject matter jurisdiction to decide the matter until the court had determined that the requested documents qualified as “agency records.” As Judge Jackson explained, “FOIA precedents also lead inexorably to the conclusion that the factual prerequisites of a successful claim under the FOIA—including whether or not the withheld records are ‘agency records’—involves a merits-based inquiry rather than one that pertains to the Court’s subject-matter jurisdiction.”

Fourth Amendment and New Technologies

The Fourth Amendment is the principal constitutional safeguard of the right to privacy. The Fourth Amendment prohibits unreasonable searches and seizures without a warrant—generally, law enforcement must obtain a warrant when a search would violate a person’s “reasonable expectation of privacy.” The Fourth Amendment also requires that warrants be supported by probable cause and describe with particularity the places to be searched and persons to be seized.

The advent of the internet and other digital technologies has ushered in new questions about when law enforcement agencies must obtain a warrant, about what constitutes probable cause to support a warrant, and about the scope of the search permitted under a warrant. Recent cases have analyzed exceptions to the warrant requirement that were developed before the widespread use of cell phones and internet services. Recurring issues in these cases include whether courts should apply the same rules to searches of electronic data as they do to physical items and the point at which police use of surveillance technologies interferes with individuals’ reasonable expectation of privacy.

At the same time that evolving technologies have required courts to closely scrutinize old doctrines, other decisions by the Supreme Court have made it increasingly difficult for individuals to vindicate their Fourth Amendment rights in cases involving new and complex legal issues. Judge-made doctrines including the good faith exception and qualified immunity often shield law enforcement officials from consequences for Fourth Amendment violations, while one of the principal tools for holding federal officers accountable for civil rights violations—known as a Bivens action—has been substantially narrowed. Below is a brief summary of a few Judge Jackson’s cases related to the Fourth Amendment and new technologies.

In Patterson v. United States, 999 F. Supp. 2d 300 (D.D.C. 2013), Judge Jackson denied U.S. Park Police officers’ motion to dismiss after the plaintiff sued the officers for violating his First and Fourth Amendment rights when he was arrested for using profanity in a public park. Judge Jackson held that First Amendment retaliatory arrest claims are cognizable under Bivens. She further held that the officers were not entitled to qualified immunity because the plaintiff’s freedom of speech was well established, and no reasonable officer could have believed that the plaintiff’s use of profanity constituted disorderly conduct.

In United States v. Fajardo Campos, No. 1:16-CR-00154 (KBJ), 2018 WL 6448633 (D.D.C. Dec. 10, 2018), Judge Jackson denied the defendant’s motion to suppress electronic communications collected from her cell phone pursuant to a wiretap. She held that traditional law enforcement methods were insufficient to determine the entire scope of the defendant’s alleged drug trafficking conspiracy and that the federal court had “listening post” jurisdiction to authorize surveillance of the defendant’s cell phone.

Questions EPIC Recommended for the Judiciary Committee

EPIC recommended that the Senate Judiciary Committee ask Judge Jackson the following questions during her nomination hearings:

Questions relating to open government:

• When a federal agency withholds records and claims an exemption from our open government laws, how and to what extent should courts scrutinize the agency’s asserted basis for the withholding?
• What is judiciary’s role in testing claims by federal agencies that records are classified and therefore exempt from public disclosure? Do you believe based on your experience as a judge presiding over open government cases that records are frequently withheld as classified even where their disclosure would not harm national security?
• When an agency seeks to withhold records based on technological claims about how the information might impact cybersecurity, how should courts review those assertions without being overly deferential? Do courts need more tools or independent experts to analyze these types of cases?

Questions relating to Article III standing:

1. Do you believe it is a problem that courts, by imposing new burdens on litigants to establish Article III standing, are effectively deciding whether Congress can grant certain types of rights to individuals? Should it be the role of Congress or the Courts to decide whether a duly enacted law can be judicially enforced?
2. In both TransUnion and the earlier Spokeo, Inc. v. Robins8 decision, the Court has relied heavily on analogies to common law in determining the scope of Article III jurisdiction. Do you believe that the scope of harms recognized by courts 225 years ago should dictate whether individuals can obtain relief in federal court for violations of their rights today?

Questions relating to the Fourth Amendment and new technologies:

1. How should courts’ interpretations of the Fourth Amendment adapt to the emergence of new technologies that collect and store vast amounts of personal information?
2. Given the high (and rising) bar of judge-made doctrines like the good faith exception, qualified immunity, and Bivens, do you believe it is still possible today for individuals to vindicate their Fourth Amendment rights?

Excerpts from the Confirmation Hearings

During the confirmation hearing, Senator Sasse asked Judge Jackson about the Fourth Amendment and Originalism Interpretation. Below is a transcript of the exchange.

SASSE: You’ve also brought up the Fourth Amendment a number of times in our conversation, and I would like to talk a little more about the Constitution and whether its meaning changes. And so I’d like to go back to the Fourth Amendment talk you brought up in my office. You said, I think—and correct me if I’m misstating your position—you said that originalism wouldn’t have much to say about the Fourth Amendment because the founding fathers never conceived of a tool, a piece of telecommunications equipment like this [holds up cell phone]. And so I think during our conversation you said that the original meaning of the Fourth Amendment won’t tell you what to do with a new technology. My guess is that originalists, and Scalia in particular, would disagree. So what do you do if the text of the Fourth Amendment doesn’t answer a question? Where do you go next?

JACKSON: Well Senator, just to clarify what I intended to say—and I may well have misspoken—there is an originalist take, I think, on the question of what happens with a cell phone. As the Supreme Court held in the Riley case, there was a way in which you assess principles of the Constitution, the text of the Constitution, and apply it to modern technology. And you have to, because there’s no question that cell phones didn’t exist at the time of the founding. So if the originalist principle is “we look only at the constitution as it relates to things that existed at the time of the founding,” there would be no answer to what to do about a cell phone.

And so what the Supreme Court has said and done is to determine that the principle of the Fourth Amendment with respect to searches is to determine whether there is a reasonable expectation of privacy—they also have looked at property interests with respect to whether or not there’s an invasion of privacy—and then determined from history what that reasonable expectation of privacy related to back at the time of the Founding, and analogized to current circumstances relating to things like cell phones.

It’s a method of interpretation that allows you to, instead of the alternative, which would be “don’t worry about the history, just look at the words in the Constitution and say ‘what do I think is reasonable or unreasonable with respect to police officers searching cell phones?'” That’s not the way the Supreme Court handles it. They try to determine what was unreasonable historically, and then given those principles—historically it would be unreasonable for police officers to enter someone’s home, to rifle through their papers and documents—they then analogize to current circumstances and the fact that a cell phone is like your personal file cabinet. And they say okay, given what we understood the framers to have intended about the need for a warrant or the need for protection against unreasonable searches, we’re going to apply that for modern circumstances. It’s still an originalist way of analyzing the current dispute.

SASSE: So are there non-originalist ways to wrestle through that same question? And what would they be?

JACKSON: One could imagine that, rather than referencing history at all, that the Court would look at the Constitution—it says “no unreasonable searches and seizures”—and would just ask in light of modern sensibilities, in light of what we would think would be reasonable today, or what the Court itself would think would be reasonable today, we would apply that modern understanding to the cell phone situation. And the danger, I think Justice Scalia would say, is that that’s a kind of framing that permits judges to make a determination based on their own views rather than hewing themselves—as Sen. Lee said before that Justice Barrett pointed out—hewing themselves to the Constitution.

SASSE: And does Breyer have a different view?

JACKSON: You know, I haven’t—I’m just trying to think. My understanding of the living constitutionalist principle is that it’s closer to looking at the needs of modern society, but I’m not well versed in it, in part because the Supreme Court has so clearly taken the historical perspective, the originalist perspective in its interpretation.

Senator Durbin later asked Judge Jackson about applying Constitutional principles to modern technology. Below is a transcript of the exchange.

DURBIN: How do you move from the language of 1789, 1790 to the reality of the 21st century and make sure it’s relevant? If more people are relying on Facebook and Twitter, for example, for information than they are common sources of television and newspapers, how do we rationalize that they can say—Facebook and Twitter—to a former President of the United States, “You can’t publish here. You’re not going to be allowed to do it.” And they’ve done that. So how do you reconcile that conflict of the changing times, the dramatic changes in technology, what the founding fathers envisioned and what we face today?

JACKSON: Thank you Senator. The challenges that you identify are the types of things that the Supreme Court is now dealing with. We have a foundational document that has text, and it has principles, it establishes freedoms and foundational, important concepts that are intended to govern us and that we are bound by as a society. There’s modern technologies, as you say, that have not, that the framers, the founders could not have imagined—the cell phone and all the other things that we now rely upon.

And as I mentioned earlier, the Supreme Court and every court deals with individual cases, disputes about issues, and when the Court gets an issue that requires constitutional interpretation, it looks at the facts and circumstances of the particular case and the text and principles of the Constitution in light of the times in which they were written, and analogizes to present day.

So the Supreme Court, for example, has considered the cell phone issue with respect to the constitutional principle of unreasonable searches and seizures, which is a protection from government intrusion that the framers called an unreasonable search. The text “unreasonable search” is not, does not have an inherent definition. What the Supreme Court has done is looked back at the time of the founding to determine what kinds of intrusion would have been covered when those words were written into the Constitution. And, to the extent that—at the time of the founding—those words covered things like a police officer intruding into your home and looking into your papers and affairs, then the Supreme Court analogizes that circumstance to the modern day circumstance of a cell phone, which now is in all respects—says the Court—like rifling through your papers and affairs.

So it’s a process of understanding what the core foundational principles are in the Constitution—as captured by the text, as originally intended—and then applying those principles to modern day.

Judge Jackson’s Nomination

President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court, The White House (Feb. 25, 2022)’

President Biden Nominates Ketanji Brown Jackson to Serve on the U.S. Supreme Court, The White House (Feb. 25, 2022)

PN1783 — Ketanji Brown Jackson — Supreme Court of the United States, Congress.gov (2017)

EPIC’s Letter

On March 21, 2022, EPIC submitted a letter to the Senate Judiciary Committee urging the Committee to ask Judge Jackson about her record on privacy, open government, standing, and Fourth Amendment issues. The letter also addresses EPIC’s concerns for privacy safeguards in the digital age and the role of the Supreme Court in protecting privacy.

• Letter from EPIC to Chairman Dick Durbin and Ranking Member Chuck Grassley, S. Judiciary Committee (March 21, 2022)

Reports of Other Interest Groups

Reporters Committee, Reporters Committee reviews Judge Ketanji Brown Jackson’s record on First Amendment, Freedom of Information Act cases (Mar. 21, 2022)

NAACP Legal Defense and Educational Fund, The Civil Rights Record of Judge Ketanji Brown Jackson (Mar. 15, 2022)

Lawyers’ Committee for Civil Rights, Report on the Nomination of Judge Ketanji Brown Jackson As an Associate Justice of the Supreme Court of the United States (Mar. 21, 2022)