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Four petitions we’re watching as the US Supreme Court fills out its docket

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  1. Policy

The passing of Justice Ruth Bader Ginsburg will change the U.S. Supreme Court in too many ways to count. The first signs of that shift may be felt at the Court’s opening conference for the term — the “long conference” — which, as of this writing, is still on the justices’ calendar for Tuesday. At that meeting, the Court will sort through a pile of thousands of pending petitions for certiorari. Almost all will be rejected; still, at least a handful will likely be granted to bulk up the docket for the term. Here are just a few of the petitions the Reporters Committee will be watching closely.

Border Searches — Each year, agents with U.S. Customs and Border Protection search a staggering number of travelers’ phones and laptops without obtaining a warrant. In Williams v. United States, petitioner Derrick Williams is asking the justices to resolve whether the Fourth Amendment at least requires the government to demonstrate reasonable suspicion that the device contains contraband. But as the Reporters Committee has argued, border searches also intrude on important First Amendment interests, including the ability of journalists to maintain their sources’ confidentiality, that only “scrupulous adherence” to a warrant requirement can protect.

The Computer Fraud and Abuse Act — The Supreme Court is already slated to hear one case on the Computer Fraud and Abuse Act, Van Buren v. United States, toward the end of November. In that argument, which deals with a police sergeant who used his access to a license plate database for improper purposes, the justices will weigh what it means to “exceed authorized access” for purposes of the federal anti-hacking law. But LinkedIn is still asking the Court to hear its petition on the meaning of another major CFAA provision — the bar on accessing a computer “without authorization” — as part of a long-running dispute over the scraping of personal data from the site’s profiles.

As the Reporters Committee explained in its friend-of-the-court brief in Van Buren, web scraping is an important data-journalism tool and the CFAA should be construed to permit it, to avoid serious First Amendment and vagueness concerns.

Compelled Decryption — The government wants to unlock your phone but doesn’t know the password. Can you be compelled to tell them? In Pennsylvania v. Davis, Pennsylvania is urging the justices to say ‘yes,’ arguing that the Fifth Amendment doesn’t protect against this kind of forced disclosure. The answer could have knock-on effects for reporter-source confidentiality.

Content Moderation — Few laws inspire as much controversy as Section 230 of the Communications Decency Act, which provides internet intermediaries with broad-based immunity from liability for the user content they host. In Malwarebytes v. Enigma Software Group, a cybersecurity firm is seeking to overturn a decision by the U.S. Court of Appeals for the Ninth Circuit that carved out an exception for decisions motivated by “anticompetitive animus.” Malwarebytes warns that the opinion could open the door to liability wherever a party alleges that a platform made moderation choices in some sort of bad faith.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.