Possible Trump SCOTUS Nominee Pryor’s Privacy Stance

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By Jimmy H. Koo

Nov. 22 — President-elect Donald Trump has a federal appeals court judge with a privacy opinions track record on his list of 21 possibilities to fill the spot left vacant by the death of Justice Antonin Scalia.

William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit has ruled in 25 cases involving privacy and information law since he was appointed to the bench in 2004 by President George W. Bush, according to Bloomberg Law data.

Companies seeking less expansive applications of privacy law requirements may find Pryor a welcome addition to the Supreme Court. Bloomberg BNA’s analysis of Pryor’s opinions reveals a proponent of judicial restraint and strict statutory interpretation in privacy-related cases—a stance akin to that of the man he might replace on the bench.

Two recent opinions authored by Pryor provide a glimpse into his judicial propensities.

Judicial Caution

The full Eleventh Circuit held in May 2015 that mobile phone users don’t have a Fourth Amendment reasonable expectation of privacy in service provider phone use location records. The appeals court held that law enforcement officers can access cell site location information from suspects’ service providers with a court order instead of a search warrant, at least when the information relates to the phones’ past locations.

William H. Pryor Jr.

In a concurring opinion, Pryor said that “if the rapid development of technology has any implications for our interpretation of the Fourth Amendment, it militates in favor of judicial caution, because Congress, not the judiciary, has the institutional competence to evaluate complex and evolving technologies.” Pryor said that legislators, not judges, are well-equipped to develop new rules for “rapidly changing technologies.”

Cases involving mobile phone data location aren’t uncommon and more cases will likely appear for Supreme Court review. Privacy advocacy group the Electronic Frontier Foundation Oct. 28 urged the Supreme Court to grant review in two cases involving whether law enforcement should be forced to always get a search warrant to identify a mobile phone user’s movements based on cell tower records. It argued that mobile phone location data implicates Fourth Amendment right against unreasonable searches.

Textual Interpretation

In a case involving the Telephone Consumer Protection Act, the Eleventh Circuit held in a March 2015 opinion by Pryor that a single unsolicited fax can constitute multiple violations of the TCPA.

Parsing the statutory construct of the TCPA, Pryor cited a book by Scalia, a strong proponent of textualism, in support of holding that a legal text’s ordinary meaning should govern its interpretation, instead of non-textual factors, such as legislative intent.

Closely reading the statute, Pryor wrote that nowhere does the statute “suggest that a continuous course of conduct is limited to a single violation.”

As of Nov. 22, a fantasy league contest run by legal consulting company LexPredict placed Pryor as the second most favored candidate among those voting. Two other circuit judges, Neil M. Gorsuch of the Tenth Circuit and Raymond Kethledge of the Sixth Circuit came in first and third on the contest list.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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