elena-kagan Chris Good has an interesting piece in the Atlantic (found via Slashdot) pointing out one of the unforeseen consequences of the digital age on the nominations of judicial appointees such as Supreme Court nominee Elena Kagan.

Nominees to the Supreme Court and other high-profile judicial positions must provide the Senate Judiciary Committee with a copy of everything they’ve ever written or said publicly. It used to be that this was a relatively simple and straightforward thing—but thanks to Lexis-Nexis and the Internet, not only is it possible to find a lot more pre-existing media, but there are also new forms of media that never existed before.

There are many, many opportunities for people to say things publicly, in a documented way, these days. Imagine what will happen when, decades from now, a president nominates someone to the Supreme Court who had access to Twitter, MySpace, and Facebook at the age of 15.

It occurs to me to wonder what Orwell would think if he knew that today we’re becoming a panopticon state not so much due to the CCTV networks going up in places such as Britain, but more because Twitter, Facebook, FourSquare, and their ilk encourage us to do it to ourselves?

I expect he would probably be somewhere between darkly amused and disappointed that he didn’t think of it first.

On a related note, Elena Kagan looks like she might finally be the Supreme Court nominee that fair use fans have been looking for. A Slashdot reader points out that she has a history of favorable inclinations toward fair-use-related issues: she recruited Lawrence Lessig to Harvard’s Berkman Center for Internet and Society, and held such a pro-fair-use position in the Cablevision DVR case that last year the Hollywood Reporter opined that Hollywood copyright lawyers were thankful Obama picked Sotomayor over Kagan for his first Supreme Court nomination.


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