Supreme Court Nominations

Supreme Court nominee Kavanaugh's record on surveillance could raise questions for Rand Paul

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U.S. Sen. Rand Paul (R-Ky.) recently tweeted that he is keeping an open mind on Supreme Court nominee Brett Kavanaugh.

But Paul said he plans to look at privacy issues when reviewing Kavanaugh, who wrote a concurring opinion supporting the government’s warrantless collection of phone metadata after the Sept. 11 attacks, report Bloomberg News and the Huffington Post.

Paul had filed a class action in 2014 challenging the data collection as a Fourth Amendment violation. Kavanaugh disagreed with that view in his concurring opinion in a different suit before the U.S. Court of Appeals for the D.C. Circuit. The case was Klayman v. Obama.

The D.C. Circuit had vacated a preliminary injunction that would have stopped the National Security Agency’s bulk collection of phone metadata. Kavanaugh’s Nov. 20, 2015, opinion concurred with the court’s refusal to grant an emergency en banc rehearing.

The data collected captured the time and duration of phone calls and the phone numbers called.

See also: ABA committee to evaluate Trump’s Supreme Court pick Kavanaugh

Kavanaugh said the government’s collection of metadata from a third-party telecommunications service provider is not considered a search. Even if the collection was a search, it was a reasonable intrusion on privacy because of the need to prevent terrorist attacks, he wrote.

Congress had curbed the bulk collection program in 2015, and a federal judge tossed the lawsuit in November 2017, the Wall Street Journal reported at the time.

The law, the USA Freedom Act, requires telecoms rather than the government to maintain call data. That data could be searched with an order by the Foreign Intelligence Surveillance Court.

Kavanaugh had referenced the 2015 law in his concurring opinion. “To be sure, sincere and passionate concerns have been raised about the government’s program,” he wrote. “Those policy arguments may be addressed by Congress and the executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.”

Hat tip to How Appealing.

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