This article is not from a privacy rights or left leaning citizen's rights watchdog, it is from the reliably conservative Washington Examiner.
New technology offers new modes of government surveillance. Today, the collection of telephone metadata, thermal imaging, and GPS tracking, among others, are all real threats to the privacy of American citizens. Given that the applications of these capabilities as a governmental tool for monitoring citizens have already come before the Supreme Court, Judge Brett Kavanaugh, if confirmed, will likely make similar decisions. Americans who value their privacy and civil liberties should study his paper trail on Fourth Amendment cases. What they will find is a troubling record that points to a judge who is likely to side with vague justifications of security over liberty.
The Fourth Amendment broadly guarantees that Americans should be free from government intrusion in their homes and private lives and that infringements on these rights must come with the justification of a warrant or probable cause. These guarantees and protections form the basis of property protections and a right to privacy both of which are fundamental to individual liberty.
In 2015, Kavanaugh went out of his way to minimize these protections. During his tenure on the U.S. Court of Appeals for the D.C. Circuit, he issued a separate concurrence in the denial of a rehearing en banc in Klayman v. Obama. That case dealt with the constitutionality of the National Security Agency’s collection of telephone metadata of all Americans. In telecommunications, metadata is the information on the length and time of calls and their origins and destinations which includes a sweeping amount of data and can offer broad details of the private lives of Americans. In his statement, Kavanaugh sided with the government writing, “In my view, the government’s metadata collection program is entirely consistent with the Fourth Amendment.”
Kavanaugh’s initial line of reasoning hinged on the application of the “third-party doctrine” which considers information shared with a third party as outside the bounds of a reasonable expectation of the privacy. In this case, using a telephone company to place a call, is considered giving up information to a third party and therefore does not come with a reasonable expectation of privacy.
More troubling, however, is Kavanaugh’s second consideration in the case — that even without the third-party doctrine, the NSA’s collection of telephone metadata is reasonable and therefore not prohibited under the fourth amendment which only protects against unreasonable searches and seizures. He wrote that the data collection “readily counts as reasonable” because it “serves a crucially important special need — preventing terrorist attacks on the United States.” He continues, “In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”
For Kavanaugh, the government’s wide net collecting metadata on all citizens is a fair trade for national security concerns.
In 2010, Kavanaugh again sided with the government over individual liberty dissenting in a decision to rehear a case. When United States v. Jones was before the U.S. Court of Appeals for the D.C. Circuit, he determined that attaching a GPS device to a car to track an individual’s movements without a warrant was constitutional. He did note, however, that it could be found unconstitutional on the grounds that an undue intrusion occurred with the actual installation of the device. Ultimately, this reasoning would form part of the basis of the Supreme Court’s 2012 ruling in United States v. Jones.
Additionally, in 2008, the U.S. Court of Appeals for the D.C. Circuit found that Fourth Amendment rights of an individual had been violated by police officers “unzipping his jacket without his permission and without probably case or a warrant.” The court ruled that unzipping a jacket in the context of a Terry stop went beyond what was necessary to protect the investigating officers or others nearby and was “precisely the sort of evidentiary search that is impermissible.” To this finding Kavanaugh dissented arguing that in the name of additional security the additional search, unzipping the jacket, was permissible.
Taken together, these rulings reveal a judge who is likely to limit the protections offered by the Fourth Amendment. As technology becomes ever more invasive and is often employed to monitor the private lives of citizens without their consent, the Fourth Amendment is a bulwark against those intrusions. American citizens need a judge who will uphold those protections and Kavanaugh seems unlikely to do so.
- Erin Dunne
My take:
What could we possibly be thinking and just who are the Republicans serving? The presidency and both houses of Congress are at this moment in the hands of the Republikan party and you the people supposedly voted them in or is it the result of gerrymandering, bald-face lying and voter intimidation. If polling shows the American people are on the opposite side of virtually every Republikan position something is very askew here. Your task, should you choose to accept it, is to expose the truth of what is going on.
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