Kavanaugh: Warrantless Data Collection “is entirely consistent with the Fourth Amendment”


On July 9th, President Trump’s announced Brett Kavanaugh as his nominee for the Supreme Court to replace retiring Justice Anthony Kennedy, and who has already begun facing intense scrutiny over issues such as Roe V. Wade, the Second Amendment, and Net Neutrality.

However, Kavanaugh’s stance on the Fourth Amendment runs in opposition to what most Americans believe, that the government should not be collecting the personal information of American citizens without a warrant.

Although a Pew Research poll from 2014 found that roughly 54% of the public disapprove of warrantless surveillance, Brett Kavanaugh believes that the program “is entirely consistent with the fourth amendment.”

In a 2015 statement “concurring in the denial to rehearing en banc” in Klayman V. Obama, Kavanaugh concluded that the collection of metadata from telecommunications service providers is “not considered a search under the Fourth Amendment.”

Even if the bulk collection of telephony metadata constitutes a search, the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures … In my view, that critical national security need outweighs the impact on privacy occasioned by this program. – Brett Kavanaugh

Brett Kavanaugh (Photo: Diego M. Radzinschi/NLJ) Source: Law.com

Sen. Rand Paul (R-Ky.) said that he is concerned about the President’s nomination in an interview with Fox News.

I am worried though, and perhaps disappointed, that I think Kavanaugh will cancel out Gorsuch’s vote on the Fourth Amendment. Kavanaugh said in his opinion on Klayman that basically national security trumps the Fourth Amendment. – Sen. Rand Paul

In his announcement of SCOTUS nominee Brett Kavanaugh, the President made no direct reference to the fourth amendment or the bill of rights, instead saying “what matters is not a judge’s political views, but whether they can set aside those views to do what the law and the Constitution require.”

However, most Fourth Amendment and Constitutional advocacy groups such as the Cato Institute are concerned that the way Kavanaugh views the Fourth Amendment may have far-reaching implications.

This surveillance may involve facial recognition, drones, and other emerging surveillance methods. That a potential Supreme Court justice might view such warrantless surveillance as justified because of a national security-based “special needs” exception to the Fourth Amendment should worry everyone who values civil liberties. – Cato Institute

As chair of the Senate intelligence committee Dianne Feinstein argued after the Snowden revelations of 2013, the government is not collecting personal information beyond “phone numbers of calls placed and received, the time of calls and duration.”

That might be the stance of politicians and bureaucrats in Washington D.C., but as Edward Snowden, former National Security Agency (NSA) employee-turned-whistleblower stated, “when you’re in positions of privileged access … you are exposed to a lot more information on a broader scale.”

Even if you’re not doing anything wrong you’re being watched and recorded and the storage capability of these systems increases every year consistently by orders of magnitude to where it’s getting to the point [where] you don’t have to have done anything wrong, you just have to eventually fall under suspicion from somebody, even by a wrong call, and then they can use the system to go back in time and scrutinize every decision you’ve ever made; every friend you’ve ever discussed something with and attack you on that basis. – Edward Snowden, 2013

Kavanaugh has some controversial views regarding the First Amendment as well. In the 2014 case American Meat Institute V. Department of Agriculture, Brett ruled in favor of “country of origin” requirements on meat packaging, concerning some free speech advocates.

I think if we give up our liberty for security we may end up with what [Benjamin] Franklin said and that’s neither – neither liberty nor security. – Rand Paul

This article (Kavanaugh: Warantless Data Collection “is entirely consistent with the Fourth Amendment”) was originally published by Phillip Schneider and may be re-posted freely with proper attribution, author credit, and this copyright statement.