How Would a Kavanaugh Hearing Play Out in 2054?

Bloomberg Opinion , September 28, 2018

Brett Kavanaugh and Christine Blasey Ford were born too soon. Nothing like this would happen in 2054.

Today’s high school students leave too much electronic evidence of their behavior and whereabouts. Google tracks their movements. Instagram and Facebook, and their computers, phones, and cloud accounts, preserve their thousands of photos and videos.

In 2018, it’s considered weird for a 53-year-old to produce a calendar of his last summer in high school. Thirty-six years from now it will be normal — indeed, expected — to have such records at hand. (My own digital calendar goes back to 2003.) The calendars will be much more detailed and supplemented by other online archives.

In an opportune coincidence, earlier this week the Senate Commerce Committee held hearings on consumer data privacy. Representatives were on hand from technology companies, including Apple, Amazon, Google and Twitter.

“Perhaps for the first time,” said AT&T Inc.’s Leonard Cali, “there is widespread agreement among industry, policymakers and many consumer groups of the need for a new and comprehensive federal privacy law.”

Most discussions of privacy and surveillance proceed from the assumption that digital records are harmful to those whose whereabouts, actions, statements and associations they preserve. A digital dossier may well be dangerous. Like DNA evidence, it can confirm suspicions of wrongdoing.

But the Supreme Court confirmation hearing for Kavanaugh provides a reminder of an often-overlooked aspect of the digital footprints we leave everywhere: Every form of surveillance can also supply an alibi. Like DNA, a digital record can protect the innocent as well as finger the guilty.

Defense lawyers already use cell-tower records to cast doubt on their clients’ presence at crime scenes. Such records, along with time-stamped digital photos, provided important exculpatory evidence in the infamous 2007 case in which Duke University lacrosse players were acquitted of rape.

In a non-criminal dispute such as Kavanaugh’s situation, producing such records could become as routine as email and document dumps — and as potentially overwhelming. But at least the records will exist.

Like dashboard and body cameras for police officers, extensive digital footprints won’t resolve every controversy. They will, however, give those accused of wrongdoing — and their accusers — a more objective record than dueling recollections. In considering how, or whether, to regulate data privacy, lawmakers should be sure not to deprive younger generations of such tools.