In an article in today’s Washington Post, cybersecurity reporter Derek Hawkins states that Supreme Court nominee Brett Kavanaugh “is drawing fire from privacy advocates and civil libertarians who object to his strong endorsements of warrantless government surveillance as a federal judge.” (Emphasis added.)
Note that Hawkins presents as fact that Kavanaugh made “strong endorsements of warrantless government surveillance.” He could easily have instead written that Kavanaugh’s critics “object to what they say are his strong endorsements of warrantless government surveillance as a federal judge.”
Hawkins discusses two cases. He badly botches one of them and offers a very one-sided account of the other.
1. On United States v. Jones, Hawkins states, correctly, that “Kavanaugh dissented when the D.C. Circuit declined to revisit its ruling that police had violated a suspect’s Fourth Amendment rights by tracking his car’s location without a warrant.” He also correctly states that the Supreme Court, on review of the Jones case, “ruled unanimously that law enforcement officers typically need a warrant to track people using GPS devices.” But he goes wildly astray when he claims that Kavanaugh’s opinion “could put [him] at odds with a majority on the court that has recognized broader Fourth Amendment protections as surveillance tools have advanced.”
It would seem that Hawkins has not actually read Kavanaugh’s brief dissent from the D.C. Circuit’s denial of rehearing en banc in Jones. For if he had, he would have readily discovered that Kavanaugh, in explaining that he did not “think the Government necessarily would prevail in this case,” sketched the very “property-based Fourth Amendment argument” that the Supreme Court majority adopted in Jones. Here are some key passages from Kavanaugh’s opinion (citations omitted):
The Supreme Court has stated that the Fourth Amendment “protects property as well as privacy.” As the defendant here rightly points out, the police not only engaged in surveillance by GPS but also intruded (albeit briefly and slightly) on the defendant’s personal property, namely his car, to install the GPS device on the vehicle.
Because of the police’s physical intrusion to install the GPS device, this case raises an issue that was not presented in Knotts. The defendant in Knotts did not own the property in which the beeper was installed and thus did not have standing to raise any Fourth Amendment challenge to the installation of the beeper. But Justice Brennan’s concurring opinion in Knotts foresaw the Fourth Amendment issue posed by the police’s installing such a device: “when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment even if the same information could have been obtained by other means.”
The key … question, therefore, is whether the police’s installation of a GPS device on one’s car is an “unauthorized physical encroachment within a constitutionally protected area” in the same way as installation of a listening device on a heating duct in a shared wall of a row house. One circuit judge has concluded that the Fourth Amendment does apply to installation of a GPS device: Absent the police’s compliance with Fourth Amendment requirements, “people are entitled to keep police officers’ hands and tools off their vehicles.” Without full briefing and argument, I do not yet know whether I agree with that conclusion. Whether the police’s mere touching or manipulating of the outside of one’s car is a “physical encroachment within a constitutionally protected area” requires fuller deliberation. In any event, it is an important and close question, one that the en banc Court should consider….
2. The legal issue in Klayman v. Obama was whether plaintiffs were entitled to an injunction against the NSA’s bulk collection of telephony metadata. Hawkins quotes passages from what he calls Kavanaugh’s “concurring opinion.” Kavanaugh’s opinion is not, as the reader might think, a concurrence in the panel ruling against plaintiffs, but rather a concurrence in the D.C. Circuit’s unanimous denial of rehearing en banc in the case. (Kavanaugh was not on the panel. Among those who were, and who denied plaintiffs relief, was noted libertarian Judge Janice Rogers Brown. Judge Brown directly disagreed with the plaintiffs, and the district court, on the merits: “I disagree with the district court’s conclusion that plaintiffs have established a ‘substantial likelihood of success on the merits.’” [I have tweaked this parenthetical since initial posting.] )
More importantly, Hawkins’s quotes omit that Kavanaugh, far from expressing his own legal views on the matter, repeatedly made clear that he was applying his reading of then-existing Supreme Court precedents:
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, at least under the Supreme Court’s decision in Smith v. Maryland (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.…
[T]he Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law.… The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.
Kavanaugh’s critics are welcome to try to make the case that he was misreading then-existing precedents. But it’s quite unfair to give the impression, as Hawkins does, that Kavanaugh was generally setting forth his own freestanding views. (In applying the Court’s special-needs doctrine, Kavanaugh does offer “my view” that “the critical national security need outweighs the impact on privacy occasioned by this program.”)*
It’s also worth noting that Kavanaugh highlighted that Congress and the president have “authority to scale back or put more checks on [the NSA] program.” Indeed, he suggested that the checks imposed by the USA Freedom Act were very modest (“to some extent”).
* I have added the parenthetical sentence and the word “generally” to the preceding sentence in response to a tweet.