Op-Ed: Justice Thomas’ refusal to recuse himself is thumbing his nose at the law
The following op-ed was written by Jeff Rosen, a staff attorney with the ACLU’s National Security Project.
The Supreme Court’s decision in United States v. Microsoft Corp., which holds that computer users do not have a right to access or run third-party applications on the company’s software, is a welcome step away from the outdated and overly broad views expressed at times by some of the Court’s current members. Chief Justice Roberts’ decision, however, leaves too much ambiguity regarding the right at issue, leaving open the opportunity for computer-industry abuses by companies.
The court’s decision should serve as a powerful warning to companies that are willing to take a risk by building their business around a third-party application on their platform for fear that the user will use it as a means of bypassing their operating system or using the software for malicious purposes. While it may make it more difficult for some companies to develop an application as a service (A.I.S.), it certainly does not make it impossible.
The decision’s ambiguity about the nature of Microsoft’s rights and obligations is harmful to users not only because it opens the door to companies that would use the loophole to subvert the rights we all have under the law and the constitutional right to privacy, but also because it leaves open to companies the ability to develop an application as a service that is built with its users’ data in mind—an approach that some companies are likely to take as they anticipate the increasing rate of data breaches happening to users in the coming years. We are already seeing the effects of these kinds of companies. In 2018 alone, a hacker managed to gain access to data from thousands of companies, including Facebook, Microsoft, and PayPal. We do not know the extent to which these breaches affected users or how they were exploited because the companies have not disclosed that information.
These kinds of issues could happen to any user of a popular third-party application such as
