Supreme Court nominee Brett Kavanaugh testified Thursday night that “I don’t see how I could” stand by a 2015 opinion he wrote upholding the dragnet collection of domestic call records, citing a recent ruling that limited police access to cellphone location data.
But Kavanaugh’s disavowal didn’t win over attorneys who challenged the National Security Agency program, who say they remain concerned about his interpretation of the Fourth Amendment and his still-murky role in post-Sept. 11 surveillance programs.
“I don’t know if that puts him on the pro-privacy side. He’s just recognizing that Carpenter is the law,” said Jameel Jaffer, who led the American Civil Liberties Union’s lawsuit against the NSA program. “In my view, Kavanaugh’s defense of the program was wrong when he wrote it.”
Conservative legal activist Larry Klayman, whose case was shot down by Kavanaugh, called the late-night testimony “a cop-out.”
“This one he dodged completely. He cleverly came up with Carpenter v. United States as a reason why he would rule differently,” he said. “I don’t know how the president could go along with someone who thinks this kind of surveillance is okay, except for the Carpenter decision. I love the president, but he was duped, and let’s hope that Kavanaugh has had a transformation.”
Kavanaugh made his clarifying remarks Thursday, following weeks of public scrutiny of his two-page concurrence in the case.
“Chief Justice Roberts’ majority opinion in Carpenter, that alters, it really is a game changer from the precedent on which I was writing at that time,” Kavanaugh told senators.
“I was trying to articulate what I thought based on the precedent at the time. At the time, when your information went to a third party… the existing Supreme Court precedent was that your privacy interest was essentially zero. The opinion from the Supreme Court by Chief Justice Roberts this past spring in the Carpenter case is a game changer,” he said.
Kavanaugh issued the controversial concurrence when the U.S. Court of Appeals for the D.C. Circuit refused to hear Klayman’s case, finding it mooted by the USA Freedom Act, which ended the dragnet. Kavanaugh attached a concurrence to the otherwise unreasoned order, disputing a lower-court judge’s finding that the collection likely violated the Fourth Amendment.
Kavanaugh wrote that the call record dragnet did not constitute a “search,” citing the third-party doctrine established by the Supreme Court’s 1979 decision in Smith v. Maryland — a common perspective among judges. But he added even if it was a “search,” the government could take the records because it had a “special need” in preventing terrorism.
Although created to prevent terrorism, a 2014 Privacy and Civil Liberties Oversight Board report found no evidence it helped disrupt any terror plot, a point raised by Sen. Patrick Leahy, D-Vt., on Thursday as undercutting his alternate defense of the program.
The breadth of Kavanaugh’s “special need” concept remains unclear and he did not directly address it in his testimony. By disavowing his concurrence, Klayman said, “I hope he’s saying that the special need exception is off the table.”
Cindy Cohn, the executive director of the Electronic Frontier Foundation, which has a pair of long-running lawsuits against NSA domestic data collection, said that she believes Kavanaugh’s statements are noteworthy, but that she remains uneasy.
“He describes the new law correctly, so far as it goes,” Cohn said. “But he’s joining the court so he’ll be in a position to alter or shrink the effect of that analysis and I saw nothing in his testimony indicating what he would do when faced with those questions.”
The Carpenter decision said police should get a warrant for historical cellphone location data. But the majority opinion by Chief Justice John Roberts declared “[o]ur decision today is a narrow one,” expressly not applying to technologies that intercept real-time cellphone location data, or cellphone “tower dumps” that could take vast amounts of data. The ruling also said, “our opinion does not consider other collection techniques involving foreign affairs or national security.”
The opinion did, however, focus on whether data was voluntarily shared with a company, introducing a legal concept that could side-step Smith v. Maryland‘s third party doctrine.
“Of course these questions are absolutely going to come up in a bunch of different contexts: license plate readers, facial recognition in public places, as well as the mass surveillance programs of the NSA — [internet] backbone surveillance, PRISM [program collection directly from tech companies], etc.,” Cohn said.
“What Judge Kavanaugh ducked in answering Sen. Leahy’s question is his assertion in Klayman that national security merited the program,” she said. “This makes me very concerned that Judge Kavanaugh will not be willing to bring a critical eye to allegations of national security by the executive [branch] — here he asserted national security in his concurrence even when the government itself had abandoned the claim that national security merited the program and Congress had passed a law ending the practice.”
Kavanaugh’s discussion of the case came after some Democratic senators alleged he may have perjured himself during his 2006 confirmation hearing to serve on the D.C. Circuit, when he denied knowing about a warrantless wiretapping program before it was exposed in 2005. An email released this week indicates that he was involved in 2001 discussion about Fourth Amendment implications for “random/constant surveillance of phone and email conversations of noncitizens who are in the United States.”
Cohn said she believes Kavanaugh’s historical role in establishing post-9/11 surveillance matters.
“There are unanswered questions about how much Judge Kavanaugh knew about the telephone records collection from his time in the White House,” Cohn said, including “whether he should have recused himself from Klayman.”
