Judge Brett Kavanaugh and the Surveillance State

While the American media focuses on the allegations of sexual impropriety of a young Brett Kavanaugh, there is one specific concern about this potential Supreme Court Justice and one of his legal beliefs that should concern all Americans, particularly those of us that are concerned about retaining what little privacy that we have from the prying eyes of the surveillance state. For the purposes of this posting, I will keep the details of the legal case to a minimum, focussing instead on Judge Brett Kavanaugh’s legal opinions.

Here is the case in question:

Here is a quote from the background of the case from EPIC and from the original decision:

On June 5, 2013, the Guardian first published an order from the Foreign Intelligence Surveillance Court (FISC), which required Verizon to produce all domestic telephone call detail records to the National Security Agency (“NSA”) on an ongoing basis. This collection was not based on any particularized suspicion of wrongdoing, all call records were collected in bulk from Verizon every day. Specifically, the FISA order required that Verizon turn over “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” According to the news article, this order “showed…that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.  In response to this disclosure, the government confirmed the authenticity of the April 25, 2013 FISC order and, in this litigation and in certain public statements, acknowledged the existence of a “program” under which “the FBI obtains orders from the FISC pursuant to Section 215 of the USA PATRIOT Act directing certain telecommunications service providers to product to the NSA on a daily basis electronic copies of “call detail records”.

Here is additional background from EPIC:

Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 following the discovery by the Church Committee of decades of domestic surveillance by the Intelligence Community. The Act prohibited domestic surveillance except with the approval of a newly created court, the Foreign Intelligence Surveillance Court (FISC). Under the FISA, the FISC could only grant orders if the government established probable cause to believe that the target of surveillance was foreign powers or agents of a foreign power.

However, Congress modified the FISA in the 2001 USA PATRIOT and the 2006 Patriot Act Reauthorization. Specifically, Congress authorized the FBI in Section 215 to apply for a FISC order compelling businesses to produce “tangible things” relevant to an authorized investigation to protect against international terrorism. Section 215 provided that businesses who received these orders could challenge them in the FISC. We now know that the FISC has since 2006 issued orders that require major telephone companies, like Verizon, to provide all telephone call detail records to the NSA.”

The Plaintiffs in this case were both Verizon Wireless customers, the first was named Larry Klayman, founder of Freedom Watch and another gentleman named Charles Strange, the father of Michael Strange , a cryptologist technician for the NSA who was killed in the line of duty in Afghanistan in 2011 who filed two complaints as follows:

1.) Klayman I filed on June 6, 2013 

2.) Klayman II filed on June 12, 2013

The suit was brought against the NSA, the Department of Justice, President Barack Obama, Attorney General Eric Holder Jr., NSA Director General Keith Alexander, U.S. District Judy Roger Vinson, Verizon Communications and its CEO.  The suit alleges that the U.S. federal government with the participation of private companies is conducting a “secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications”.  Additionally, the plaintiffs allege that the Government has violated their individual rights under the First, Fourth and Fifth Amendments of the Constitution and that it exceeded its statutory authority under FISA.  In Klayman II, two additional members were added, private investigators Michael Ferrari and Matthew Garrison and several defendants were added including Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T and Apple. 

On December 16, 2013, U.S. Federal Judge Richard J. Leon ruled that the bulk collection of American telephone metadata likely violates the Fourth Amendment of the Constitution which provides that people have the “right to be secure in their persons, houses paper and effects against unreasonable searches and seizures…” and that Warrants shall be issued “upon probable cause”.  Here is a direct quote from his decision:

…the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is beyond anything that could have been conceived…

In later developments, D.C. Circuit Courtt Justice Kavanaugh wrote a solo concurrence as shown here:

Let’s pick out the salient points:

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. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty. Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports.  The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States.

In my view, that critical national security need outweighs the impact on privacy occasioned by this program. 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.

In sum, the Fourth Amendment does not bar the Government’s bulk collection of telephony metadata under this program…” (my bolds)

When reading through Judge Brett Kavanaugh’s solo concurrence, it is very apparent that he strongly believes that government has the right to snoop into our private affairs because they have a “special need ) to do so, at the cost of our personal liberty.  Given that this gentleman will remain on the Supreme Court for the remainder of his life, we can be assured that, should another case of this type appear before the Supreme Court during his tenure, he will be voting in favour of state-sanctioned surveillance of hundreds of millions of Americans, Fourth Amendment be damned.  There is one thing that we can be certain of; our civil liberties will continue to be eroded.

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