2018 2018: Spencer Discusses Kavanaugh Nomination and Privacy Implications

UMass Law Associate Dean for Academic Affairs Shaun Spencer was quoted in a Washington Times story on how Judge Brett Kavanaugh’s nomination to the Supreme Court could affect constitutional protection against government surveillance

UMass Law Associate Dean for Academic Affairs Shaun Spencer was quoted in a Washington Times story on how Judge Brett Kavanaugh’s nomination to the Supreme Court could affect constitutional protection against government surveillance. The Supreme Court recently decided in Carpenter v. United States that the Fourth Amendment limits the government’s ability to obtain location information from a person’s cell phone provider. If the government seeks seven days or more of an individual’s location information, the government must first obtain a search warrant.

Spencer noted that Carpenter was decided by a five-to-four vote, and that Judge Kavanaugh would be replacing retiring Justice Anthony Kennedy, who voted in the four-justice minority. Therefore, Spencer observed, “Carpenter itself seems no less safe with [a] Justice Kavanaugh on the court than it was with Justice Kennedy.”

As Spencer explained, however, the implications of Kavanaugh’s nomination go beyond the Carpenter decision. During Kavanaugh’s confirmation hearings last week, Vermont Senator Pat Leahy questioned Kavanaugh about his concurring opinion several years back in a case involving the NSA’s bulk collection of telephone metadata from U.S. telephone service providers. Kavanaugh’s concurring opinion observed that the collection of years of telephone metadata deserved no constitutional protection because telephone users had shared the information with their telephone service providers. During his confirmation hearings, Kavanaugh suggested that Carpenter would prevent him from writing his concurring opinion the same way today. However, Kavanaugh’s answer sheds little light on whether he would extend Carpenter beyond location information to protect other types of records such as financial records and consumer transactions.

In addition, according to Spencer, Kavanaugh did not address the other important aspect of his concurrence in the NSA bulk telephone metadata collection case. Kavanaugh wrote in that case that, even if obtaining years of telephone metadata were a search, it would be allowed under the so-called “special needs” exception to the warrant requirement because it was a terrorism prevention program. Leaving aside the fact that the Supreme Court has never held that terrorism prevention falls within the “special needs” exception, Spencer suggested that the way Kavanaugh analyzed the issue hints at how he might decide future cases involving terrorism prevention.

As Spencer explains, to determine whether the government may rely on the special needs exception, the court must consider the government’s interest in the search, the nature of the privacy intrusion, and the effectiveness of the search in advancing the government’s interest. In Judge Kavanaugh’s concurrence, he first noted the importance of fighting terrorism, which seems undeniable. Next, however, he minimized the nature of the privacy intrusion by noting that the NSA collected only data about the numbers called and the times and durations of each call, rather than the content of the calls. Finally, he did not address at all whether the program was effective, despite the fact that the Privacy and Civil Liberties Oversight Board had already concluded that the program had not made a concrete difference in any counter-terrorism investigation.

According to Spencer, “Kavanaugh’s broad application of the special needs balancing test to justify this counter-terrorism program echoes his expansive view of executive branch power in other contexts. It is on balancing tests like these that a future Justice Kavanaugh could have the most significant impact on the Court’s privacy jurisprudence.”

To read more, visit: 

https://www.washingtontimes.com/news/2018/sep/10/brett-kavanaugh-reveals-evolution-digital-privacy-/