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

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

The 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 […]

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