Tenth Amendment Blog

The real problems with newly anointed Supreme Court Justice Brett Kavanaugh got completely lost in the political theater surrounding his confirmation.

The Constitution delegates the power to appoint justices to the Supreme Court to the president with the advice and consent of the Senate. Justices hold their position for life (during good behavior). The intent was to elevate the process, transcending the political influence inherent in the other branches of government, rendering those serving on the High Court immune to petty politics.

We saw how well that played out with President Trump’s nomination of Brett Kavanaugh to the SCOTUS. Partisan politics and grandstanding turned the confirmation process into a circus. Rather than discussing issues such as the proper role of the judiciary, federalism. and maybe even the concept of limited government, the Judiciary Committee zeroed in on unsubstantiated claims of sexual misconduct from the 1980s, flatulence and beer drinking.

The progressive left became wholly consumed with all of the above while so-called conservatives reveled in left-wing outrage, disregarding fundamental principles of liberty, particularly those concerning our right to be left alone. Specifically, the Senate completely ignored Kavanaugh’s long history of supporting warrantless surveillance; namely, his rubber stamp on NSA programs that vacuum up reams of Americans’ personal data.

With regard to the bulk collection of metadata by the NSA, Jude Kavanaugh declared it “entirely consistent” with the Fourth Amendment.

“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, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.”

Kavanaugh based his opinion on the so-called third-party doctrine. In simple terms, this legal precedent assumes that when you give information to a third party, such as a bank or an internet service provider, you forfeit any right to privacy.

He went on to say he believed a seizing metadata would still be legal even absent the third-party doctrine

“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,” he wrote. “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. See THE 9/11 COMMISSION REPORT (2004). 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.”

The Fourth Amendment states the following:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Note the Fourth Amendment does not include an exception for information that you entrust to a third party, nor for “special needs.”

Many argue that collecting metadata isn’t all that intrusive. Kavanaugh alluded to this when he mentioned the NSA program does not capture “the content of communications.” But as cybersecurity expert Gregory Carpenter explains, metadata can reveal a great deal about you.

“Metadata is information that explains and identifies information about other data. A web page can have metadata on it, for example, metadata tags that tell you how big the page is, what the content is, but doesn’t exactly reveal what the content is; it identifies the parameters of the data on the page. In regards to telecommunication, metadata can explain the duration, the context, but not the content and the connection between the different phones, the services they use and the applications that are used on the phones and the duration of use for each application as well as number of and size of text messages on an Android, an iPhone or any of the text applications.

“Metadata can also tell the time between the text messages and telephone call, and it can identify if you go back and forth between different communication venues to speak with someone. If can also draw out a pattern and identify a social network from interaction between telephones, computers, or any other type of IT network you use to communicate with someone.”

Metadata also includes location information. Think about what you can learn about somebody based on where they go.

Guardian reporter did an interesting experiment tracking his own metadata for 24 hours. As you read through his log, it becomes clear just how much information you can glean about a person.

Those who claim government agencies gathering metadata is consistent with the Fourth Amendment base their position on the premise that the government isn’t really learning anything personal or significant about you. If they do need to learn more, then they must get a warrant — the promise. After the 9/11 attacks, the bulk collection of data became part and parcel of the War on Terror. Most “patriots” considered this a small price to pay for national security. After all, some of the new surveillance authority came via something called the Patriot Act. Besides, why worry if you have nothing to hide?

But consider this: would you be OK with the government going to your mailbox every day, scanning your mail, and storing it forever, as long as the feds promised they wouldn’t actually open the mail unless they got a warrant?

Probably not.

And another question: would the Founders have considered this behavior at odds with our right to be secure in our persons, houses, papers and effects?

Without question.

In his book Compact of the Republic, David Benner discusses writs of assistance. Writs should not be confused with warrants, which require a higher level of government scrutiny, including review by and approval by a judge. Writs were much broader in scope, as Benner explains. They did not require an itemized list of things to be seized and they never expired. Further, they were drafted and approved they the very agency doing the searching.

Compare that to the stringent warrant requirements of the Fourth Amendment. That was the very point of the Fourth Amendment. The intent of was to ensure writs would never plague Americans again.

Writs were used to enforce protectionist economic policies implemented by the Crown. They effectively created corporate monopolies. Accordingly, Americans seeking to trade with other countries could only do so if sanctioned by Parliament. The practice, says Benner, was necessary to enforce British policy while at the same time violating the sanctity of private property.

Writs of assistance were a flashpoint in the years leading up to the Revolution. James Otis Jr. argued strenuously against their constitutionality in what came to be known as Paxton’s case. He did not prevail, but his fiery oration heavily influenced John Adams and other revolutionary leaders. Otis vividly described the indignity of the writs.

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, “Yes.” “Well then,” said Mr. Ware, “I will show you a little of my power. I command you to permit me to search your house for uncustomed goods” — and went on to search the house from the garret to the cellar; and then served the cons

NSA spying rests on a premise eerily similar to 18th-century writs of assistance. The federal government essentially claims the authority to store vast amounts of personal data forever and access it at any time, all in the name of national security – or as Kavanaugh termed it for “special needs.”

The government assures us we need not worry. It will get a warrant pursuant to the Fourth Amendment before it digs any deeper into our electronic communications. But consider how much information the government can glean from metadata alone, and then ask yourself: is that not a significant enough violation of your privacy to warrant protection from government intrusion?

Think about it: the government claims the authority to capture and indefinitely store every conversation you have, be it oral or written, so long as it’s electronic, just in case the government decides it needs it. Would you be OK with the government gathering up all of your written correspondence and storing it away for future perusal? Would you trust the government to get a warrant before accessing that information? Do you really trust the government at its word, especially given revelations of corruption too numerous to count?

The founding generation would not have put such trust in the British Crown. In fact, it didn’t. And the founders went to great lengths to ensure that those who would live under the post-Revolution government under the United States Constitution would not have to either.

Unfortunately, this discussion wasn’t in the script for the political theater of Kavanaugh’s confirmation hearing. It should have been.

Michael Maharrey contributed to this article