Chief justice nominee carries slim record on tech

By now, it's well known that Supreme Court nominee John Roberts upheld the arrest of a girl accused of snacking on a lone french fry inside a D.C. subway station, but his stance on technology matters remains murky.

On Monday, Sept. 12, the conservative federal judge will begin facing questions from the Senate Judiciary Committee in hearings widely expected to result in his confirmation as chief justice. The committee postponed the proceedings, originally scheduled to begin Tuesday, out of respect for the late Chief Justice William Rehnquist's family and in response to requests from others, including the mayor of disaster-stricken New Orleans.

President Bush tapped Roberts for an associate justice post after Justice Sandra Day O'Connor announced her retirement in July. But shortly after Rehnquist's death on Sept. 3, the president revealed his intention to make Roberts his pick for the high post.

"We'll certainly be looking to the Congress people to question him even more closely now," said Corynne McSherry, a staff attorney for the Electronic Frontier Foundation. "It's not just a matter of intellectual property issues; it's a matter of asking about First Amendment, about privacy. I wish that I could say where we think he's going to fall, but there just isn't enough of a judicial record to make a good enough prediction."

Roberts, 50, has served as a judge for the U.S. Court of Appeals of the District of Columbia Circuit since June 2003. Before then, he split his career between practicing law privately and for the government, including four-year stints as associate counsel to former President Ronald Reagan and as the Justice Department's deputy solicitor general, the post that helps to argue cases on the government's behalf before the Supreme Court.

When his nomination was first announced, the EFF posted on its site a short list of tech-related cases in which Roberts had been involved. The government later released a bundle of memos related to Roberts' prior Justice Department work, but nothing "has come out since then that has particularly clarified or improved our ability to read the tea leaves," McSherry said.

But the EFF has suggested that Roberts may be prone to yielding authority to federal agencies in questions of technology. The organization has expressed hope that he would act cautiously before expanding regulatory power.

In a 2003 case (click for PDF), Roberts wrote an opinion for the court that upheld a Federal Communications Commission order setting a deadline by which all televisions with a display size of 13 inches or greater and certain other VCRs and DVD players had to possess a tuner capable of receiving digital TV signals.

Roberts also participated on a three-judge panel in 2003 that ultimately decided a noteworthy spat between Verizon Internet Services and the Recording Industry Association of America. The court ruled that the recording industry couldn't continue its practice of subpoenaing Internet service providers like Verizon for the names of alleged illegal file swappers without first obtaining a judge's consent. But it "sidestepped crucial speech and privacy questions," the EFF said.

At oral arguments before the opinion was delivered, Roberts hinted at his skepticism of the RIAA's practices, saying that if he left the door to his library ajar and someone entered, "that doesn't make me liable for copyright infringement."

"He asked some very pointed questions," said William Patry, a copyright lawyer in New York. But, in general, the circuit "is not a hotbed of copyright disputes...I think you'd find extremely few judges in the D.C. circuit who have experience with copyright."

And besides, Patry said, intellectual property cases don't tend to split down party lines, noting a history of unanimous decisions, including the recent file-sharing debate in the MGM v. Grokster case. "Will he be protective of intellectual property, or will he be somebody who is more concerned about property owners overreaching? Those questions are so general that I don't think that they're helpful...We've never experienced any partisanship at all over intellectual property issues. I wouldn't expect them with him."

CNET News.com's Declan McCullagh contributed to this report.