The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In this, my final post on Judge Kavanaugh's testimony, I focus on one issue that may prove the most important: his views on the Fourth Amendment. Having written an opinion suggesting that bulk data collection was constitutional, he insisted that the Carpenter case involving cell phone tower data was a "game changer." [My comment is in brackets.]
Day 3, Part III (2:01:07 – in response to Senator Pat Leahy on Kavanaugh's former opinion okaying the dragnet of phone recordings by the NSA, justifying it as a means to prevent terrorism):
The important I would say is I was trying to articulate what I thought was based on precedent at the time. At that time, when your information went to a third party, and the government obtained that information from the third party, the existing Supreme Court precedent was that your privacy interest was essentially zero. The opinion for the Supreme Court by Chief Justice Roberts this past spring, in the Carpenter case, is a game changer. And that's important. I talked repeatedly in this hearing about how technology will be one of the huge issues with the Fourth Amendment going forward. And you see Chief Justice Roberts' majority opinion in Carpenter that alters and really is a game changer from the precedent on which I was writing at that time.
[The claim that Carpenter was a game changer undermining the constitutionality of bulk data collection was made by Sharon Bradford Franklin in here article, Carpenter and the End of Bulk Surveillance of Americans, which is worth reading in its entirety. Franklin contends that:
Under Carpenter, the third-party doctrine does not extend to the type of collection conducted under the former Section 215 program, and that program would violate the Fourth Amendment. The bulk collection of call detail records, which show over time who calls whom and when, exposing intimate personal details and patterns of association, creates the same privacy risks as the cell site location information that is protected by the Fourth Amendment under Carpenter.
If this is what Judge Kavanaugh has in mind by "game changer," then this is potentially big.–REB]
Leahy then asks: "In light of Carpenter, do you believe that there is ever a situation where computing/tracking power becomes so pervasive that a warrant would be required?"
Two points. I also went on in [Jones] to say the attachment of the GPS device on the car was an invasion of the property right and that independently would be a Fourth Amendment problem. When the case went to the Supreme Court, the majority opinion for the Supreme Court followed that approach that I had articulated in saying that it was a violation of the Fourth Amendment. So, the approach I had articulated there formed the basis of saying it was actually unconstitutional to install the device. I relied on that in the Silverman decision from 1961 and Justice Brennan's concurring opinion in the Knotts case in the 1970s. On your other point on technology and the phone that you held up, I do think the Supreme Court case law in the Riley case written by Chief Justice Roberts, and the Carpenter case, both majority opinions, both show his and the Court's recognition of the issue that you're describing, in that technology—it's made things different. And we need to understand those differences for purposes of applying Fourth Amendment law now. And I do think those two decisions are quite important as we move forward. And I think someone sitting in this chair ten years from now—I think that the question of technology on Fourth Amendment, First Amendment, war powers is going to be of central importance. […] I think Supreme Court case law is developing in a way consistent with your concern.
Day 3, Part I (1:51:11 – in response to Hatch's question on how to respond to emerging technology and situations unforeseen by the enactors of legislation):
Sometimes Congress will write broader, more capacious words – so does the Constitution at times—that can apply to new technologies. For example, the Fourth Amendment, of course, in the Constitution, applies to things that were not known at the Founding, including cars and communication devices that were not known at the Founding. So too with statutes, it depends on how broadly or narrowly you've written it. Your question raises a broader point, which is the issue of privacy and liberty, on the one hand, versus security and law enforcement on the other. It's an enormous issue going forward for Congress, in the first instance I believe, and also for the federal courts including the Supreme Court going forward. The Carpenter case this past term is a good example of that, written by Chief Justice Roberts. As I look ahead over the next ten to twenty years, that balance of Fourth Amendment liberty and privacy versus security and law enforcement is an enormous issue.