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SCOTUS Nominee Brett Kavanaugh on the Fourth Amendment and Warrantless Bulk Data Collection

Where does Judge Kavanaugh stand on the Fourth Amendment?

C-SPANC-SPANThe Fourth Amendment was added to the U.S. Constitution to protect Americans from facing unreasonable searches and seizures by the government. Yet according to Judge Brett Kavanaugh, Donald Trump's nominee to replace Justice Anthony Kennedy on the U.S. Supreme Court, the Fourth Amendment suffers no violation when the federal government engages in the wholesale warrantless collection of every Americans' telephone record metadata.

Kavanaugh expressed that view in the course of a 2015 statement concurring in the denial of rehearing en banc in Klayman v. Obama, which was then before the U.S. Court of Appeals for the District of Columbia Circuit. The case centered on the constitutionality of the National Security Agency's controversial information-gathering program, which involved the NSA collecting the telephony metadata of all Americans. "In my view," Kavanaugh wrote, "the Government's metadata collection program is entirely consistent with the Fourth Amendment."

Kavanugh offered two principal explanations for why he considered the program to be constitutional. First, he invoked what's known as the "third-party doctrine," which says that if you voluntarily share private information with a third party, you no longer have a reasonable expectation of privacy in that information. "The Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment," Kavanaugh wrote.

But "even if the bulk collection of telephony metadata constitutes a search," Kavanaugh continued, turning to his second justification, the program may still be approved because the Fourth Amendment "bars only unreasonable searches and seizures. And the Government's metadata collection program," he wrote, "readily counts as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States." He added: "In my view, that critical national security need outweighs the impact on privacy occasioned by this program."

My colleague Jacob Sullum recently observed that while Kavanaugh has been "receptive to cases that challenge gun control laws on Second Amendment grounds," he "seems to take a narrower view of the Fourth Amendment." Kavanaugh's endorsement of warrantless bulk data collection by the U.S. government would seem to reinforce that observation.

The future of the Fourth Amendment is one of the most pressing issues facing the Supreme Court. As the members of the Senate Judiciary Committee prepare for Brett Kavanaugh's confirmation hearings in the coming months, I encourage them to devote real attention to his possible shortcomings on the Fourth Amendment front.

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  • Incomprehensible Bitching||

    We can't let this right wing takeover of the judiciary come to pass! It's not right! The fucking diarriahc burns! It burns so much I can't frt off the toilet! We care I'll all gong to die! Die in a fire! Aahsjrjrhdjj. Eagle barges!

  • AlmightyJB||

    Nice handle:)

  • Fist of Etiquette||

    ...the Fourth Amendment suffers no violation when the federal government engages in the wholesale warrantless collection of every Americans' telephone record metadata.

    Unfortunately this doesn't tick off any of the concerns of the president's voting base, like gun rights.

  • John||

    He is a government hack on this issue. Notice he takes it for granted that the government's claim that this serves a pressing need is actually true. Basically, the top men say it is so, so he is going to believe it.

    I don't like this guy. He is supposed to be good on religious freedom and gun rights, but I don't trust his character enough to even believe that. I think Trump screwed the pooch here and if we are not lucky may have screwed it badly.

  • Bubba Jones||

    Which is odd because he calls bullshit on Chevron.

  • John||

    I agree. His position seems to be that you can't trust the assertions of government unless it is the cops. Cops apparently are pure as the driven snow.

  • Bubba Jones||

    He and Sotomayor should be fun at parties.

  • John||

    She trusts anything the government says unless it's the cops. Between the two of them, you have both the ideal and the worst justice imaginable.

  • Just Say'n||

    Amazingly, Scalia was the best on the 4th Amendment. His lone dissent in Hamdi v. Rumsfeld is masterful

  • ByteRot||

    So between them, you have a 7-justice panel in play on any "do you trust the government?" issue. I mean, could be worse, especially since we already have Sotomayor as a given.

  • gimmedatribeye||

    What's with the blind allegiance to the police? I consider myself pretty conservative, but where I differ with my conservative brethren significantly is the criminal justice system and the police. Some people go out of their way, bending over backwards and twisting themselves into pretzels to defend cops.

    It's like some people with mommy or daddy issues...they have emotional problems because their dad didn't hug them enough...but with them, it's criminals...it's like they have some kind of psychological inability to defend a "criminal" from the unyielding power of the criminal justice system. If the cop says their bad, they must be bad.

  • gimmedatribeye||

    they're*

  • Tony||

    Conservatism in America is rooted in and remains largely about fear of brown people. Cops keep brown people away from white people by putting them in cages. Legislators and judges do their fair share too.

  • gimmedatribeye||

    Thanks for the feedback, but that's bullshit. And skin color has nothing to do with it.

  • MarkLastname||

    Not only could Tony never pass an ideological Turing test, but he probably couldn't pass an ordinary Turing test.

  • Elias Fakaname||

    Tomy comes straight out f left field scream 'racism' as a non sequter. Since he's too fucking stupid to have a relevant opinion. He just went woh a Media Matters talking point instead.

    Stupid bitch.

  • Curt||

    Yeah, his argument on Chevron basically seems to be that it's unlawful unless Congress has clearly authorized the executive branch to do it.

    So, does he have some explanation of how he aligns this with telephone metadata? It's probably related to Patriot Act. Congress passed the patriot act which says executive branch is free to spy on whatever the hell they want. Ergo, no conflict with Chevron.

  • John||

    The heart of Chevron is that the executive deserves deference in how they interpret a law. As long as their interpretation is reasonable, courts will in accordance with Chevron affirm their actions. That is exactly what Kavanaugh is doing here. He is taking every claim by the government at face value as long as it is facially reasonable.

  • Gaear Grimsrud||

    Looks like Massie was right. This guy ain't no Gorsuch. Not even close.

  • MarkLastname||

    Amash, but close enough.

  • hello.||

    He's actually shit on religious rights too. He accidentally came down on the right side of a couple high profile cases but the opinions gave "offended observers" standing to sue on first amendment cases and agreed that mandating birth control was a "compelling government interest".

  • Elias Fakaname||

    This is part of why I don't like that. I refuse t go on man dates.

  • Longtobefree||

    But his second amendment views do - - - -

  • Bubba Jones||

    why you gotta give me a sad?

  • Scarecrow Repair & Chippering||

    I don't get nearly as excited by violations of the 4th amendment simply because trying to stop the NSA et al from collecting it is a lost cause -- that horse left the barn decades ago. Technological solutions are the only real damper.

    And whereas 3D printing will make it easier to slip around gun control violations of the 2nd amendment, registration lists are a much worse problem.

  • Bubba Jones||

    I remember when it was scandalous that we might have war plans sketched out against potential foes.

    http://en.wikipedia.org/wiki/T.....the_Condor

  • chemjeff radical individualist||

    BUT HILLARY WOULD HAVE NOMINATED A JUDGE WHO WOULD MANDATE DEATH CAMPS SO WE SHOULD BE GRATEFUL TO TRUMP FOR PICKING KAVANAUGH

  • John||

    Hillary would have nominated a judge who is just as bad or worse on the 4th Amendment but made up for it by reading the 1st and 2nd Amendments out of the Constitution.

  • Just Say'n||

    But...Gorsuch

    No seriously, Gorsuch is pretty good on the 4th Amendment.

  • Pro Libertate||

    At least we have Gorsuch.

  • Michael Hihn||

    Unless he really is the Christian Taliban, remotely possible. But I think any vote on Roe will see 2-3 conservatives stand with the liberals. Roberts for sure, from his known concern for the institution of the Court. And no way will marriage equality be touched.

    This is yet another issue where both tribes are overwhelmed with hysteria.
    The new normal.

  • ByteRot||

    There weren't even any words in all-caps, let alone entire paragraphs. 2/10, would not recommend.

  • bevis the lumberjack||

    I assume Hillary would have supported the nomination of Garland, who most civil libertarians I read considered to be a total badge licker when it came to the law regarding cops. So, yeah.

    This nominee is a piece of crap on the 4th, but maybe he and Gorsuch will come to blows over the Privacy Doctrine and he'll change his way of thinking. No, probably not. He's gonna be terrible on the 4th for the next 40 years or so.

  • perlchpr||

    He might be, but as John said, maybe he'll be not complete shit on the 2nd at the same time. Hillary's pick wouldn't have been better on the 4th, and would have been worse on the 2nd.

  • hello.||

    I assume Hillary would have supported the nomination of Garland

    No need to assume since she said as much.

  • Curt||

    I think the most disturbing part of his opinion here is the reliance on 3rd-party doctrine. That is a concept that was genuinely bad in its time. Now, in the time of computers and internet, it's simply terrible. Can we please find a way to kill this abomination?

    Beyond that, he says it would be okay anyway... because national security. "Because national security" is basically the same thing as "for the children". Shitting on the 4th amendment in the name of national security should be a disqualifier. Instead, it's probably one of the few areas where he'll get bipartisan support.

  • Cynical Asshole||

    Shitting on the 4th amendment in the name of national security should be a disqualifier. Instead, it's probably one of the few areas where he'll get bipartisan support.

    Sadly, you're probably right. Both parties take turns on the fourth amendment like it's a 2 dollar whore being passed around a frat party.

  • John||

    Pretty much. all of these guys are horrible on the 4th Amendment. It is a lost cause.

  • Hugh Akston||

    Those who would give up essential Liberty, to purchase a little temporary Safety, are really just being reasonable.

  • Pro Libertate||

    Sounds like evil capitalism to me, this exchange of yours.

  • Bubba Jones||

    Where do I get a phone service that purges my tracking data?

  • Cathy L||

    At the end of the rainbow?

  • AlmightyJB||

    Start your own company. Problem is that not enough people care about privacy to pay the premium you would need to be able to compete and stay in business with that model.

  • target||

    would this be good enough? I thought the govt mandated keeping these types of records in exchange for permission to operate.

  • Conchfritters||

    ^ pretty much what you said. "AT&T hands my data over to the government?? Hey look! Free HBO!!"

  • Rich||

    if you voluntarily share private information with a third party, you no longer have a reasonable expectation of privacy

    What if I make a contract with said third party that requires my data to be kept *private*? How's that for "reasonable expectation"?

  • Cynical Asshole||

    That's not "reasonable" because... something something... if you have nothing to hide... mumble mumble...

  • Elias Fakaname||

    And just because one might have something to hide, it doesn't necessarily have to be something illegal.

  • Jerryskids||

    You mean like the NDA the cops sign with the Stingray people that trumps the Constitutional requirement that you be presented with the evidence against you? That seems to be iron-clad.

  • chemjeff radical individualist||

    Yeah I'd like to know how this all is supposed to work if I direct my cell service provider to make the info secret, or not store it altogether, but then they have a secret deal with the government to share my data with them anyway.

  • Fuck you, Shikha (Nunya)||

    According to them, third party trumps all.

  • Cynical Asshole||

    Where does Judge Kavanaugh stand on the Fourth Amendment?

    Under his boot, stomping on it forever?

  • bevis the lumberjack||

    With his jackboot on its throat?

  • Furzeydown||

    +1 to the face

  • Pro Libertate||

    That goes in the not good column.

  • Hugh Akston||

    But you get your choice of topping!

  • Pro Libertate||

    Well, so long as I get something of value for giving up some civil liberties. . . .

  • AlmightyJB||

    Oh you'll get something all right. Prepare to bend over.

  • Michael Hihn||

    Thanks again, Damon, for so clear an explanation.

    The more analyses I seen of Kavanaugh, the more it's clear that he's a shill for government power, and the imperial Presidency/ It does make sense that he was picked from Trump's near-psychotic fear of Mueller's investigation.
    A Justice who says a President is all-powerful, which is what Trump obviously believes.

  • John||

    The calls are coming from inside your head, you crazy old bastard.

  • gimmedatribeye||

    What is your position on the gay wedding cake issues?

  • Longtobefree||

    Wedding cakes are just wedding cakes, they have no sexual preference.
    That is why the bakery sold several cakes to the homosexuals.
    All the person refused to do was create speech (DECORATE the cake) that violated his religious beliefs.
    And the sissy supremes refused to address the first amendment rights at all, and said the problem was that Colorado was mean when it said religion is illegal in the US now.

  • Conchfritters||

    You have to be a pot stirring moron to ask a racist baker to make your fucking wedding cake. I don't see too many Jews going to the Nation of Islam bakery and asking them to make a bris cake when JR has his foreskin removed. Sure, they could do it, but you just don't see that shit happening.

  • gimmedatribeye||

    Yeah, but I was wondering what this Michael Hihn fellow thought about it.

  • Jerryskids||

    Not only is the third-party doctrine utter bullshit, but the argument that the metadata collection is reasonable because it keeps the tigers out of my backyard terrorists away is utter bullshit without some showing that it actually works. Good intentions are not enough.

  • brec||

    The right of the people to be secure in their persons, houses, papers, and effects, 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.

    How do you get from that to making government collection of telephony metadata illegal without going waaaaaay beyond the meaning of the text?

    NB The issue I raise is not whether the collection of the data is a Good Thing; the issue is how the 4th Amendment prevents it. (Same issue for collection of cell tower based phone location tracking records, which SCOTUS a few weeks ago said required a warrant.)

  • brec||

    *required the gov't to get a warrant to obtain.)

  • Longtobefree||

    " persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"
    No person was searched to obtain the metadata.
    No house was searched to obtain the metadata.
    No papers were searched to obtain the metadata.
    So exactly what is an 'effect' in this context? The most common, and most probable, is belongings.
    No belongings were searched to obtain the metadata.

    Where is the violation here? Remember, this is not phone calls, it is data about the calls.
    Old timer equivalent; the FBI looks at your mail (unopened) and records who it is from, and who you write to.
    Since 2002, the United States Postal Service photographs the outside of all mail, retains those images for weeks or months, and provides them to police or other investigators upon a simple request.
    (God help me, I am citing the NYT - but from 2013)

  • Jickerson||

    No papers were searched to obtain the metadata.

    "papers" refers to the information on the paper, not the paper itself. There is information involved here: The metadata.

    Remember, this is not phone calls, it is data about the calls.

    I loathe this excuse. For one thing, both metadata and the actual phone call data are just data. One isn't inherently separate from the other, as they are both types of data. Therefore, there's nothing that should make one legally okay to collect but not the other.

    Second of all, metadata gives you a massive amount of information that can be used for oppression. It can be used to target whistleblowers, activists, lawyers, political opponents, and so on. It is therefore a threat to freedom and democracy. To pretend that it's harmless because it's 'just metadata' is asinine; they wouldn't collect it if it was useless.

    Old timer equivalent; the FBI looks at your mail (unopened) and records who it is from, and who you write to.

    Well, they shouldn't.

    Here's an idea: How about the government leaves people the fuck alone?

  • josh||

    "But "even if the bulk collection of telephony metadata constitutes a search," Kavanaugh continued, turning to his second justification, the program may still be approved because the Fourth Amendment "bars only unreasonable searches and seizures. And the Government's metadata collection program," he wrote, "readily counts as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States." He added: "In my view, that critical national security need outweighs the impact on privacy occasioned by this program."'

    This right here is probably enough for me to oppose him. I try to accept that I'm not the one appointing the next justice, and there's room for reasonable people to disagree on how the constitution should be interpreted. However, this strikes me as too much, especially in a world that is going to be defined by government power in the face of outside threats much more than ever before.

  • Tony||

    This guy has something for everyone to hate. Trump is such a great compromiser.

  • Window Cleaning Spokane||

    Yes, it's probably related to patriot act, congress passed the patriot act which says executive branch is free to spy on whatever the hell they want.

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