The Tech Questions Facing Ketanji Brown Jackson

In a series of confirmation hearings starting March 21, members of the Senate Judiciary Committee will question Ketanji Brown Jackson, President Biden’s pick to replace Justice Stephen Breyer on the Supreme Court — and while tech policy is not expected to be a major area of focus for either party, two issues in particular could come up. Critics of the tech industry’s treasured liability shield often claim judges have interpreted Section 230 of the Communications Decency Act too broadly. It was a topic of discussion in Amy Coney Barrett’s confirmation hearing — which occurred around the same time that Justice Clarence Thomas first urged his colleagues to take up a case that would allow the court to weigh in on Section 230’s reach and scope. Thomas has since pushed twice more for the Supreme Court to probe Section 230. Meanwhile, Democratic senators such as Richard Blumenthal (D-CT), who’s pursuing an overhaul of Section 230 via his and Sen Lindsey Graham’s (R-SC) EARN IT Act, may also ask Jackson about the limits of Section 230’s liability protections for tech platforms. Barrett was also questioned by lawmakers, including Sen Amy Klobuchar (D-MN), over the reach of the Sherman Act, the bedrock law of American antitrust jurisprudence, as well as her general views on US antitrust law. Klobuchar is working to pass a significant overhaul of antitrust law that would directly affect the tech industry through her American Innovation and Choice Online Act, and may look to see where Jackson stands on the effort.