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Brett Kavanaugh’s Fourth Amendment Blind Spot

The Supreme Court nominee’s skepticism fades when cops and spies look for evidence without a warrant.

This week Rand Paul, the libertarian-leaning Republican senator from Kentucky, said he was "worried" and "disappointed" by Supreme Court nominee Brett Kavanaugh's views on the Fourth Amendment. It is not hard to see why.

Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, is skeptical of politicians who want to restrict gun rights, regulators who limit freedom of speech or assert powers with a weak statutory basis, and prosecutors who try to convict defendants without proving all the elements of their alleged crimes. But he seems less inclined to scrutinize the claims of cops and spies who collect evidence without a warrant.

To some extent, Kavanaugh is simply following his understanding of the Supreme Court's search and seizure precedents. But he has been known to venture beyond those cases in ways that alarm civil libertarians.

In 2015, for instance, Kavanaugh called the National Security Agency's mass collection of Americans' telephone records "entirely consistent with the Fourth Amendment." According to the logic of a 1979 decision in which the Supreme Court approved warrantless police access to the phone numbers dialed by a robbery suspect, he said, the NSA's snooping did not amount to a search. Even if it did, he added, it "readily qualifies as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States."

That claim is dubious in light of a report issued by the federal government's Privacy and Civil Liberties Oversight Board the previous year. "We are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack," the board said.

Kavanaugh also perceived a "special need" in a 2012 case involving the U.S. Forest Service's random drug testing of people employed at its Job Corps Civilian Conservation Centers. While two members of a three-judge D.C. Circuit panel deemed that requirement unreasonable because the government had presented no evidence of "a serious drug problem among staff," Kavanaugh said the policy was justified as a way of shielding the at-risk youth served by the centers from drugs.

Kavanaugh likewise pushed a new excuse for warrantless searches in a 2008 case brought by a man named Paul Askew, who was convicted of illegally possessing a gun that police discovered after stopping him because his clothing was similar to an armed robber's. While the cops were allowed to frisk Askew for weapons, the majority said, they went too far when they unzipped his jacket.

Kavanaugh, joined by three other judges, disagreed, accepting implausible and seemingly contradictory claims that unzipping the jacket was constitutional because Askew had resisted the pat-down and because it helped a witness to the robbery decide whether he was the perpetrator (which he wasn't). The latter rationale would give police new leeway to look under people's clothing without probable cause.

Kavanaugh's position was more ambiguous in a 2010 case involving a suspected drug dealer, Antoine Jones, whose movements police tracked for a month by attaching a GPS device to his car. Kavanaugh, who wanted the full appeals court to rehear the case after a panel concluded that the surveillance violated the Fourth Amendment, was skeptical of the idea that tracking Jones constituted a search because of the quality and quantity of information it collected.

Kavanaugh was more open to the argument that ultimately persuaded a majority of the Supreme Court: that the physical intrusion required to plant the tracking device amounted to a search. But that rationale would not support invoking the Fourth Amendment in cases where information is collected without trespassing on someone's physical property, as when police use cellphone records to recreate a suspect's movements.

Last month the Supreme Court ruled that looking at such data is a search, meaning it generally requires a warrant. I can't say for sure how Kavanaugh would have viewed that issue, but I have a pretty good idea.

© Copyright 2018 by Creators Syndicate Inc.

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  • Last of the Shitlords||

    This is part 1 in a new series based on the exploits of the poster who claims to be "Michael Hihn".

    Hihn finished typing his new post for Reason. "I'll set those goobers straight!" He maniacally thought in his usual incoheren fashion. As he clicked on the onscreen 'submit' button he could feel his bowels involuntarily evacuate into his adult Depends.

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    TO BE CONTINUED.............

  • Marty Feldman's Eyes||

    TO BE CONTINUED.............

    Please don't.

  • Nardz||

    Agreed

  • Last of the Shitlords||

    Everyone's a critic.

  • Cynical Asshole||

    All this does is make me miss SugarFree. He was the king of disturbing slashfic. With all due respect, this is a pale imitation.

  • Last of the Shitlords||

    I would be delighted if he would come back and do it. All I care about is driving Hihn out. He has got to go. If he lists on an article with 300 posts, 120 or so are hs rambling antagonistic bullshit. Hihn doesn't discuss anything either. He just attacks with big bloated soots that drown out everyone else.

    I fucking hate Tony and Shreek, but can tolerate their garbage. They're lying pieces of shot, but will at least engage in siemhting resembling an actual discussion.

    Not Hihn though. Not anymore. I'm open to alternatives though. He's the target, not the rest of you. If anyone has a better idea how to deal with him, please put it out there.

  • Inigo Montoya||

    I hope Trump withdraws this nomination. Anybody who sticks up for the NSA's warrantless crap should be disqualified. It may be a dumb populace who wants to erase 1A and 2A, but it is the government who wants to erase 4A, and they are much scarier.

  • Leo Kovalensky II||

    4A is right out there, ready for the taking. There really isn't much SCOTUS precedent with regards to digital search and seizure. Also, this is an area where the militarized police, FBI, CIA, homeland security, etc are infringing on rights and seizing assets daily. So really I suspect that 4A and 5A are both at risk in upcoming court decisions.

    The conservative leaning of the court really worries me in relation to their deference to law enforcement.

    Why can't there be a justice that would defend all 10 of of the Bill of Rights? I hate that we have to pick and choose priorities among basic civil liberties.

  • Robert||

    Seriously, each of them thinks s/he does. They just understand the details differently.

  • Robert||

    As w any group decision, the best I think we can ever do is having most of them mostly favorable to what I/we want. You'll never get everything.

  • Mithrandir||

    This is true. Additionally, you never want the perfect to be the enemy of the good, but this is definitely an issue we may realistically see the Supreme Court finally address in the near future, as mentioned in the above thread. I'm seriously worried by the potential result of that given the potential makeup of the court...

  • Cynical Asshole||

    Why can't there be a justice that would defend all 10 of of the Bill of Rights?

    Defend all of our rights? What are you, some kind of crazy extremist? /sarc

  • I am the 0.000000013%||

    If Trump does withdraw this nomination (and I would like that myself), he has to do it quick.

    There is going to be stalling and posturing on the approval process, and I think that if this goes past the election we are going to see a worse nominee being selected.

  • Leo Kovalensky II||

    There is no chance that Trump would ever withdraw a nomination. It goes against his ego. Has he EVER admitted that he was wrong about something? Has he ever even admitted something he did wasn't the best it could possibly be?

  • marshaul||

    Well, he's fired his picks plenty of times so far. How is that any less admitting having been wrong?

  • marshaul||

    He can just blame it on the Dems anyway.

  • Mithrandir||

    I hope Rand doesn't cave in to Trump's whining this time. We are probably not going to get another homerun selection like Neil Gorsuch, but for fuck's sake, I don't want to see anyone who supports the NSA data collection program anywhere near the Supreme Court.

  • Robert||

    No matter who's nominated will include a deal-breaker for someone here. Fortunately we're not the ones dealing!

  • Robert||

    I bet as the yrs. go by, you'll find some decisions where this guy went the way you wanted & Gorsuch didn't. That's always how it turns out.

  • Rich||

    "serves a critically important special need"

    For a truly diverse SCOTUS, don't we want to include a special needs Justice?

  • Robert||

    But Eugene Volokh thinks Kavanaugh's peachy keen for the job.

  • Rev. Arthur L. Kirkland||

    I am more interested in libertarian -- or even "libertarianish" -- views.

  • Enjoy Every Sandwich||

    This is a FAR more important issue than Roe v. Wade. But it won't get half of the attention.

  • brec||

    Here is what the 4th amendment says:

    The right of the people [each one of us] to be secure in their persons, houses, papers, and effects ["stuff"] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Clearly (to me, at least), there is no way to get from that to a requirement that the gov't needs a warrant to search a telco's metadata, or cell-tower-based phone location records, as protection due a cell phone user.

    .
    What SCOTUS has done, starting with Katz (1967), is to abstract from the amendment's language the protection of an "expectation of privacy" (Katz found a 4th amendment violation in a warrantless recording of one side of a phone conversation from a device attached to the outside of a phone booth [old enough to remember those?].) If you want to protect privacy, you might favor such an abstraction, which might be called a kind of "living constitutionalism." But if you want to stick with what's called an originalist, meaning-of-the-text mode of constitutional interpretation, as Kavanaugh is reputed to want, you'd have to rely on state legislatures and Congress to enact privacy protections beyond the text of the 4th amendment.

  • lafe.long||

    Clearly (to me, at least), there is no way to get from that to a requirement that the gov't needs a warrant to search a telco's metadata, or cell-tower-based phone location records, as protection due a cell phone user.

    So by this logic, if you use the US Mail, anything that you might mail can be seized and searched at the whim of law enforcement/fedgov? I don't think the founders would have agreed with that at all.

  • brec||

    The founders might well have thought that a mailing remains one's paper or effect. (I'd be surprised if there weren't explicit historical commentary about this issue, but I can't do the research just now.)

    Aside: according to current originalism theory, what counts is not what the Founders thought or intended, but the original public meaning of the text.

  • marshaul||

    This is the dumbest kind of originalism. By this logic, Heller was wrongly decided because it didn't specifically and presciently call out by defining feature every modern type of firearm. If the 2A protects the modern understanding of "arms", then the 4A protects the modern understanding of "things to be seized".

    Records are things, bruh.

  • marshaul||

    Correction: By this logic, Heller was wrongly decided because the 2A didn't specifically and presciently call out by defining feature every modern type of firearm

  • brec||

    Sorry, I don't understand. Why would original-public-meaning require specification of every (possible) type of "arms"? If you demoed a (not sure what you have in mind) Glock semi-automatic or an AR-15 (much despised among the anti-Hellers) to a 1791 person would that person deny that it would be included in "arms"?

  • brec||

    The primary issue that I see is not the digital form of the records, but that the records are not owned by the person claiming the 4thA violation. The Carpenter records are cell-tower phone location records created by the telco which operates the towers. The 4thA promises to the people security in their persons, houses, papers, and effects.

    As noted, SCOTUS has abstracted away the concreteness of the 4thA and created the more general rule that it protects (reasonable) "expectations of privacy." This process of abstraction may provide the right result sometimes, but it can also have unwanted effects. E.g., for some of us, interpreting the Commerce clause to allow, in effect, regulation of any economic activity was not a good thing.

  • benEzra||

    The flashes of light traveling along the optical fibers between the sending and receiving cell towers aren't the property of the person claiming the 4thA violation, either. Nor are the drive platters of Google's or Apple's servers that encode your love letters, your diary, your medical records, and your intimate pics of your significant other from your phone backups. You didn't create those magnetized spots; Google/Apple did. But that doesn't mean they're not protected by the core of the 4thA.

    Come to think of it, the records created by a contractor-owned backscatter X-ray camera sitting on a public right of way outside your bedroom window wouldn't belong to you, either. But such files had darn sure better be "absolutely no access without warrant."

  • brec||

    I don't know what "the core" of the 4thA means. Perhaps it means what you (and I!) would like to be secure from gov't snooping? But that's not necessarily the same as what the amendment actually protects.

  • JFree||

    The original public meaning of the text was to prohibit the abuse of writs of assistance which served as general search warrants. The govt going to a telco company and saying 'hand over all your data' is PRECISELY a writ of assistance.

  • brec||

    I believe you mean the original primary motivation, and I believe that is correct.

  • brec||

    I oughtn't to have said "believe you mean." What *I* meant is that I don't see that historical context in the text of the 4thA.

  • JFree||

    That's the only historical context that can exist at the founding. The federal government didn't have much in the way of police powers. Nor were there many/any federal crimes or federal prisons or federal courts to adjudicate anything as a court of original jurisdiction.

    Nor did the 4th apply to the states until 1961 - except to the degree that founders actually wrote similar stuff into state constitutions. And here's John Adams own personal experience with writs of assistance and how they influenced the specific provision of the MA constitution which he wrote - and from there other state constitutions.

  • brec||

    I agree with all of that. The original public meaning of the text prohibited general warrants. (I misread "was to prohibit" in your 6:32PM comment.) A telco is entitled to a specific warrant for any search or seizure of its data. However, if the telco chooses not to require a warrant, I don't think the affected phone user has a 4thA case for suppression.

  • JFree||

    if the telco chooses not to require a warrant, I don't think the affected phone user has a 4thA case for suppression.

    I guess that would depend on how narrowly we want to interpret the protections of the 4th. The telco can certainly consent to a warrantless search of its own premises. But the telco has no real right to consent to violating someone elses 4thA protections no matter how nicely the govt asks them to. And it is never reasonable for govt to violate someone's 4thA protections merely because they found a third party who didn't give a damn.

  • Leo Kovalensky II||

    Read Gorsuch's semi-dissent in Carpenter. It's pure gold.

    His contention isn't that a reasonable expectation of privacy is in 4A (ie your living constitution argument). Instead that the data generated by your effects are your effects and thus subject only to searches with a warrant and probable cause.

  • JFree||

    Actually he didn't argue that. If he had written what he wrote - and filed it as a separate concurrence; then that might be a reasonable interpretation of what he wrote.

    But he filed it as a dissent - same as Thomas (whose sole point was that it wasn't your property so no probable cause required).

  • SRoach||

    As much as I want to disagree with this, I can't.
    If the government can ask your neighbor about your comings and goings, without your consent, or ask the shopkeep for a list of what he can recall selling you over the last month, then they should be afforded similar permission to ask your service provider, or merchant, to provide what records they have on you, that are generated for their benefit, not yours.

    Where I would, and do, stand in opposition is anytime the government requires the service provider, or merchant, to collect and keep those records in case the government ever has reason to go through them.

    The phone records were there for a reason. They allowed the phone companies to make sure they got paid. By my reading of the fourth amendment, these are the papers of an imaginary construct called the Phone Company rather than the papers of their customer.

    Now, on the issue of a web-server, the issue reverses. That is your property, sitting inside someone elses property, doing your work. As far as I'm concerned, it would be okay for the government to politely request the ISP provide any records they have of bandwidth usage and billing, and for the ISP to comply if they so choose, it would not be okay for the government to ask the ISP, without a warrant, to mirror your disks so they can go through them at their leisure, and if the ISP did so, again without a warrant, they would be guilty of trespass.

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