Kavanaugh’s views on privacy, Fourth Amendment should make Republicans think twice

We can all agree that the debate over Brett Kavanaugh’s nomination to the Supreme Court has been especially partisan. Democrats reflexively oppose anything emanating from the Trump White House. But Republicans and libertarians are raising the alarm about one aspect of Kavanaugh’s record: his views on Fourth Amendment protections against unreasonable search and seizure and on privacy rights more generally.  

Representative Justin Amash (R-MI) has opposed Kavanaugh as too deferential to the executive branch’s unwarranted collection of electronic data. Similarly Larry Klayman, longtime Clinton legal nemesis and the founder of the conservative group Judicial Watch, took issue with Kavanaugh’s opinion in a case about government bulk collection of metadata, Klayman v. Obama.

Kavanaugh’s nomination for a lifetime seat on the Supreme Court raises troubling concerns about our right to be free of unwarranted government oversight in an age of expanding capacity to engage in surveillance without our knowledge.

{mosads}The Klayman case was a challenge to the federal government’s “bulk data collection” program begun under the Bush Administration. Under that program, the government collected telephone “metadata,” such as information on numbers dialed and how long phone calls lasted, on numerous individuals without a warrant, and deposited it into a database. The FBI could then probe that database with approval by the Foreign Intelligence Surveillance Act (FISA) court. A federal district judge issued a preliminary injunction against the program in both 2013 and 2015, finding that the program improperly collected metadata on people not suspected of any crime. After the 2015 injunction was stayed on appeal by a three-judge panel, Judge Kavanaugh had the chance to state his views in no uncertain terms.

While the full D.C. Circuit declined to review the stay order, in his concurring opinion Kavanaugh went out of his way to assert that the metadata program was “entirely consistent with the Fourth Amendment.” Even in the absence of full briefing, Kavanaugh concluded that the alleged “critical national security need” for the program “outweighs the impact on privacy.”

Not only did the panel and the lower court find cause to enjoin the program, at least one appellate court ruled the metadata collection to be illegal. Reason magazine’s Jacob Sullum noted that the Privacy and Civil Liberties Oversight Board contradicted Judge Kavanaugh’s claim that the program was important to “preventing terrorist attacks”, saying they were aware of “no instance” where the program had such an effect.

But a Republican privacy advocate doesn’t have to hate the metadata program to be concerned about Kavanaugh’s record on the Fourth Amendment. In United States v. Jones in 2010, another three-judge panel ruled that the government’s use of a global positioning system (GPS) device to track the movements of an individual for four weeks without a warrant violated the Fourth Amendment rule against unreasonable search and seizure. The decision was hailed by conservative privacy advocates. But Kavanaugh dissented against the decision not to rehear the case. He saw no difference between short-term police monitoring and a month-long collection of location data without a warrant. But the Supreme Court upheld the D.C. Circuit unanimously (though split over the rationale), with some conservatives relying in part on the lengthy aggregation of data as a basis for the ruling.

In his recent answer to the Senate Judiciary Committee’s questionnaire, Kavanaugh claimed that he was simply suggesting a property-based rationale for the DC Circuit’s holding, which was ultimately adopted by the Supreme Court. While he did raise the property-based rationale in his dissent, Kavanaugh clearly disagreed with both the DC Circuit and the Supreme Court as to scope of an individual’s reasonable expectation of privacy. This is the critical factor today as courts across the country are applying traditional privacy standards to new online and electronic environments.

Two other Kavanaugh Fourth Amendment dissents should also raise alarms about his privacy views. In United States v. Askew, the full D.C. Circuit, including several conservative Republican appointees such as Janice Rogers Brown, decided that the police violated the Fourth Amendment rights of a suspect by unzipping his jacket to search him without a warrant after a stop and frisk produced no results. Kavanaugh dissented, saying that the action was justified as a reasonable continuation of the stop and frisk and it helped police in showing the robbery suspect to a witness. The majority said there were “no reasonable grounds for believing that the unzipping would establish or negate appellant’s identification as the robber in question” and said Kavanaugh’s conclusion was “both contrary to the District Court’s factual findings and unsupportable on any plausible reading of the record.”

In National Fed. of Fed. Empl.  v. Vilsack, the court invalidated a random drug testing program for US Forest Service employees at Job Corps Civilian Conservation centers. There was “no evidence of any difficulty” in maintaining a zero-drug tolerance regime during the 14 years prior to adoption of the policy, and the primary administrator of the Job Corps, the Department of Labor, had no such policy. The majority criticized Kavanaugh’s vote to uphold the program, noting that he “paints with a broad brush without regard to precedent” on both the D.C. Circuit and the Supreme Court “on the particularity of the Fourth Amendment inquiry” on such drug testing programs.

As America and the world adapt to the era of electronic communications, privacy issues become more complex and Fourth Amendment rights become more critical. Kavanaugh’s record of repeatedly deferring to executive power and narrowing Fourth Amendment rights is out of step with advocates of all ideological stripes who value the fundamental importance of individual privacy. In today’s partisan climate, those on the right will decide the fate of this nominee. For libertarians and other Republicans focused on privacy rights, the question is clear: Will you forsake your commitment to individual privacy rights by approving Judge Kavanaugh’s nomination?

Michael Macleod Ball is President of 627 Consulting, LLC, an advocacy and management advisor to non-profit organizations, and practices law in southern Maine. From 2007 to 2017, he managed ACLU’s federal advocacy office in Washington, and led their lobbying efforts on speech and privacy issues. Follow him on Twitter @MWMacleod.