NSA metadata program “consistent” with Fourth Amendment, Kavanaugh once argued
arstechnica.com
arstechnica.com
As much as I want these programs to be ended, the fact of the matter is that there's no coming back from a government with broken courts. If the supreme court ever gets to the point where one party is packing it and they're ignoring precedent, that's game over. People will be shooting each other. Don't believe for one second that our country or our time in history is special, it's on the table and as long as humans are forming institutions it will always be on the table.
You can equally argue that there's also no coming back from a government that no longer respects civil liberties, but that's irrelevant to a conversation about who we ought to put on the courts. Kavanaugh is looking to become a member of the least oscillative part of American government, and I'm personally glad that he places the sanctity of that institution over everything else --- yes, even the values of the constitution.
To anyone who reads the full article and comes away believing that Kavanaugh is in the wrong, I have to wonder what criteria you believe he should be using to decide his position when answering questions like this. It's unreasonable to say, "He should just look at the constitution and see that these programs are at odds with the 4th amendment and we'll just fix everything in one fell swoop." The court can't operate like that.
Be angry at the precedent. Be angry at the legislators who wrote the Patriot Act. Be angry at the ISPs for cooperating so freely. Be angry at yourself for not making or using technology that makes their spying irrelevant. But don't blame the court for putting their responsibility to self-preserve over their responsibility to bail society out of our collective bad decisions.
edit: s/precedence/precedent/g
In any case, the courts should not be legislative bodies. When a court replaces precedent with an interpretation of the law or the constitution, they are correcting a past mistake.
Being bound by precedent is one thing that stops every court from legislating their own interpretation of unclear laws - it makes sure everyone at least gets the same law.
Congress can't pass a statute, for example, that criminalizes oral and anal sex, and expect it to somehow overrule Lawrence v. Texas.
However, if the courts interpret a statute that Congress has passed in a way that Congress does not care for, Congress is free to alter the statute to be more clear.
I don't like the victim blaming tone of this line, but I do agree with the idea that as the govt becomes more authoritarian, in parallel, we should be exploring techniques to render their strong-arm tactics virtually useless
Also from the Kavanaugh ruling
The Constitution isn’t a set of “values” against which judges must assess law. It’s a written set of directives and constraints. It’s a contract that defines the outer scope of democracy.
The 4th amendment, likewise, doesn’t articulate a set of “values.” It says:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
Interpreting the word “their” does not require resort to “values.” Google’s server logs are not “your” data just because they record a hit from your computer. A phone company’s call records likewise are not “your” data. It’s not about “values,” but the plain meaning of ordinary English words.
Blaming “precedent” here is even more misguided. Precedent long ago departed from the text of the 4th amendment, importing this expansive “reasonable expectation of privacy” concept into a document where the word “privacy” or anything like it never appears.
If we get the courts to strike down things like metadata collection in 4th amendment grounds, it will only be because the courts ignore what the Constitution says, expands this precedent, and impkses one group’s “values” onto the public.
And how the heck can you interpret the word "unreasonable" literally?
By your interpretation, because the phone companies' wires and the voltages thereon are not yours, wiretaps have nothing to do with the fourth amendment. If I place a GPS tracker on your car, that's not "yours" so none of its data is "yours", and I didn't literally search or seize your car, so I'm in the clear. And so on and so on.
It’s not like the defintion of “their” as a word denoting possesson or ownership has changed since the 18th century. And it’s not like third party data was an unknown concept in the 18th century. It was an age of commerce, with merchants and bankers keeping extensive records about the dealings of third parties.
As to wire taps—the Supreme Court decided it right the first time when it found in Olmstead that a wire tap was not a fourth amendment search. The contrary decision in Smith was based on this expansive “reasonable expectation of privacy” articulation which has no basis in the Constitution.
GPS trackers are a different story. There, the government is treapassing on your char (your chattel property) to conduct a search.
Interpreting the word “their,” meanwhile, to encompass all third-party data pertaining to “them,” does a lot more violence to the English language.
GPS trackers don’t provide information that’s unavailable to high altitude drones/aircraft/somone following the car. Their advantage is how cheap they are not that they provide non public information.
Further privacy is never directly mentioned. So, a pure textual reading suggests it’s not protected rather than say the inconvenience of somone searching your stuff.
What you say on the last line implies that all of the US' flawed constitution should be taken word for word, and nothing else! In that case, you should be able to have nuke's; as you have "the right to bear arms". Cognitive dissonance is what seems to be the problem with your take.
“nuke's“ Arms did not nessisarily include personal cannons which where available back then. (It has been interpreted this way though.) So, that’s arguably a distinction already in the constitution.
But again if you want to take a more expansive reading that’s reasonable, you simply can’t defend both interpretations. So, if you want reading A that also supports personal nuclear weapons then that’s included in reading A despite the unwanted side effects.
Attaching a brick to someone’s suitcase with a magnetic clamp would be a trespass to chattels (which can result from any intentional physical contact, even if it does not damage the property). You can’t go around attaching things to other peoples’ property.
Our legal system is not base on such meaningless distinctions. But, it’s to interpret things such that the rule is you (government agents) can place a tracker in the bed of a pickup truck as long as it’s not attached. But, cases are decided based on context not the form actions take. So this is a privacy issue not a private property issue.
Trespass isn’t expressly mentioned in the constitution, but it is one that is at least consistent with the text. The 4A lists several kinds of private property, and prohibits unreasonable “search” or “seizure” of that property. What is an “search” or “seizure” of private property? The structure of the text makes clear that it is a wrongful intrusion by a government agent onto property. What do we call wrongful intrusions onto private property? Generally, it’s trespass.
“Privacy,” on the other hand, doesn’t fit the textual formula at all. The text says nothing about “privacy.” The contemporaneous debate said nothing about privacy. Saying that the fourth amendment is about “protecting privacy” totally abandons the textual nexus between a “search” and some private property. It is in fact an example of fallacious reasoning. It is the conclusion that because a “search” is one way to invade someone’s privacy, that anything that invades someone’s privacy is a “search.”
Is there a pithy way to phrase it?
Only if you're a lawyer or a judge. To the people of this country, the Constitution does represent a set of values. Some founders protested the inclusion of the Bill of Rights on the grounds that the constitution already protected many of these things, and that their inclusion would elevate these particular points above others. So why include it, then?
It's not unreasonable to see the Bill of Rights as a sort of airing of grievances. For the lawyers and judges that doesn't have any practical value, it's just a system of words to navigate. But just because it's of no use to a lawyer doesn't mean that is the only perspective to consider. Our government ostensibly serves the people and the work of the lawyers and judges and legislators is supposed to manifest as a government that the people want.
Regular everyday normal guys look at these programs, we think about what inspired these amendments and how it reflects some set of values, and we think that it still resonates with us today and would like to have a government that is aligned with those values. Us regular everyday normal guys don't care how you lawyer-types get us back there, we just want it done.
Really, I think you and I are advocating for the same thing. I realize that surveillance hasn't been struck down because there's no real legal reason to strike it down. What I'm saying is that this isn't a good reason to abandon the system altogether. But I wouldn't go as far as you to say that some set of values doesn't exist, and that the constitution is only a legal document, and that everything is exactly how it's supposed to be.
What would that imply for any jurisdiction that does not consider the US constitution to be ground truth?
Is it not possible to have a democracy that is at odds with the US consitution? Clearly, it is possible. Therefore the US constitution does not define the outer scope of democracy.
Even if we accept that premise, the fourth amendment still protects against "unreasonable searches and seizures". This means that the government needs to go through a meaningful review process to take possession of other people's property. This is unquestionable not the case with PRISM / FISA court approvals. Blank checks for the government to access whatever data it wants is unreasonable searches and seizures
The fact of the matter is that metadata is somebody's property and by forcing all third-parties to be unable to defend their data about their customers, the government denies enterprises the ability to compete in the marketplace on as many privacy features.
Since that time, it's been generally understood that to get the actual data requires a warrant whereas the metadata just requires asking whoever is storing the metadata.
If we want to roll that back - and I do - we need to demonstrate that the metadata is just as telling/informative/sensitive/damaging as the data itself and therefore should be protected under the same standards.
It's plain to me that the call records are 'my' data. I don't see why your interpretation has a superior legitimacy to mine; we both know that there are many serious arguments on both sides (let's spare HN from repeating them). Honest question: Why would your position be 'plain', and the other an imposition of values?
Also, I would appreciate if you would provide some expert context: The comment reflect an approach to the law that is one philosophy among several leading ones, or perhaps rather one position on a continuum between 'strict construction' and interpretation.[0] But I'm not an attorney and I'm hoping you can provide better context than my amateur attempt at it.
Also, clearly we do not and cannot follow the 'plain meaning' of the law. For example, even in something so prominent as the U.S. Constitution: The First Amendment is treasured and protected, but exceptions are (and must be) made for slander, fraud, significant threats, etc., and none of that is anywhere to be found in the text. The Second Amendment's text doesn't make exceptions for regulating more dangerous weapons, but we must not allow anti-aircraft weapons or nuclear bombs in private possession. So among real practitioners and experts, how are simple algorithms such as 'the plain meaning' squared with those realities?
I really do mean them as serious questions, not as a debate; I think the heart of these issues is in the nuance on that continuum, and we can't understand them without understand it.
[0] As an aside, I think that strict construction appeals to many HN readers because it is familiar, the way the compiler/processor interprets code/instructions. But consider that strict construction can face the same limitations in real-world applications as code, and while we sometimes must say 'computers can't solve that problem', courts don't have that luxury - they must output a solution, even if the code isn't up to the task.
But there is lots of text that is open to interpretation. The framers didn’t say “the government shall make no law regulating speech.” If they did, I’d argue all those First Amendment exceptions were unconstitutional. What they said instead is that the “freedom of speech” “shall not be abridged.” They referenced an existing concept (“freedom of speech”) that was understood to have exceptions and limitations.
Likewise, the 4th amendment prohibits “unreasonable” searches. The 8th amendment prohibits “cruel and unusual punishment.” The 14th amendment requires “equal protection of the laws.” What are those things? They are ambiguous concepts that courts can define.
I have to sincerely disagree w/ you here. To me, "papers, and effects" effectively covers both data at rest and data in transit. To have the government meddle with your property is a "search". Colonial-era founding fathers would not have thought stopping a messenger on horseback and searching his belongings would fly, and there is no material difference to modern-day communications.
From the article, Kavanaugh writes:
> 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).
In Smith v. Maryland, the telecommunications provider was complicit in installation of a pen register; from Smith v. Maryland,
> The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home.
But to apply a ruling from a case where one party is okay w/ the police monitoring a communication (the "third-party doctrine") and applying that to a case where no party is okay with the communication (NSA's spying on Americans' communications, such as through hacking communications lines of companies such as Google) is to misapply the precedent where it didn't belong. (Particularly in a request for an en banc hearing.)
Facebook, Google, Apple, Microsoft, Yahoo, and other tech companies were also named as defendants in the case; calling them "telephone companies" is a stretch.
> who cooperated
You're perhaps right that we need to demonstrate that the companies did not cooperate. The judge's ruling in that case includes that the companies were under a FISA warrant, thus, not willingly. (The companies own public statements also demonstrate this, but those are not under oath.) A warrant of the size alleged in the case would be unconstitutional, unless you believe searching millions of American's communications can someone be considered "reasonable", but it should at least be challengable in a court of law.
But further I worry this will be used for other (non-PRISM) programs, that did not involve warrants or cooperation, and were blatantly unconstitutional. If I have the timing of events here right, the Klayman case was a few months too soon; shortly after its filing, information about MUSCULAR (an NSA program capturing internal datacenter traffic in several tech companies, "the exploitation relied on the fact that (at the time at least) data was transmitted unencrypted inside Google's private cloud"[1]).
[1]: https://en.wikipedia.org/wiki/MUSCULAR_(surveillance_program...
Isn’t that an argument against “originalism” the dominant judicial theory of “conservatives”? I find it odd how “originalists” suddenly become very interpretive of the Constitution when it suits their political needs (see also: Heller).
The fact the govt controls a military would be reason for the founders to demand even better weapons in the civilians hands. The founders had been through tyrannical governments and knew what happens to the unarmed civilians.
I know this causes fear in folks and they want to infringe on that right. That is the way the bill of right reads.
People can pretend otherwise but that is the way it works.
Note : The US was founded on natural law which dictates we have the right to self defense. Rights govts do not grant nor can they infringe.
Justice Scalia, one of the stronger voices on individual right to bear arms, wrote in D.C. vs Heller that the right was neither absolute nor unlimited, and therefore the government can regulate guns and their ownership. You're categorically stating as a matter of fact that citizens can own military grade arms, that this is what the bill of rights says. But that is not true. It's not the law of the land, nor is your opinion undisputed by legal scholars. You get to say it's an opinion that's out there, but when not even Scalia went that far, it's a fringe opinion.
Unethical leaders and folks in power will attempt to twist the language to meet their goals. This corruption is what causes problems in govts.
The constitution limits the govt and clearly defines how those limits are to be changed. With a constitutional amendment.
Precedents can not and do not change the constitution no matter how hard it is wished to be so.
If this were actually true, we wouldn't need a Supreme Court and the members of that court wouldn't rule differently all the time.
As far as ownership of military grade arms - that stems directly from the wording of the Second, and is given some validation by the judicial commentary in the Miller decision (that's the one where the court ruled that the defendant did not have a constitutional right to possess a sawed-off shotgun, on the basis that it is not a common military weapon). The exact boundaries of 2A are yet to be determined, but the wording of Heller strongly imply that "assault weapons" are protected - it specifically cites "... in common use at the time" as one of the criteria for protection, and it would be very hard to argue that a firearm of which 9 million were made (and sold) in 8 past years alone is not "in common use".
It would be the ultimate irony if this argument that it's all about the militia wins the day, but combined with individual interpretation of the right - which would imply that every citizen has the right to own military grade weapons (even fully automatic, since that's what militaries use, after all) - and only them; not hunting rifles etc.
These organizations are still controlled by their state governments, and the National Guard can, and does, deploy in support of operations overseas - a Federal-level operation.
To think that this is comparable to what the Founders thought of as militias at the time is just not true. Their position is even more clear in The Federal Papers.
I understand that you have serious arguments, but there are many other serious arguments that disagree and this debate has continued for generations. I think it's factually incorrect to say that it's "clear", by any definition of "clear" beyond 'it's clear to me personally'.
“A properly run business, being necessary to ensure profit, the right of the people to keep and bear suits, shall not be infringed.”
Its not hard to use "word algebra" to see the equation.
I highly doubt that was the intent. You have to look no further than Shays' Rebellion.
If you are implying something, is it really orginalist? I was under the impression that the entire theory of originalists is not to interpret.
Controversial Supreme Court decisions dominated much of the politics of the second half of the 20th century. At the beginning of this one, the Supreme Court picked a president. Historically, the court has been 'packed' or beholden to partisan interests several times. It's hardly 'game over'.
https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bil...
I didn't.
"Kavanaugh went further, saying that even if the Section 215 metadata program was a search, it should be considered 'reasonable' in the name of national security."
To me that's all you really know about this nominee. 4th amendment issues are entirely bound up in precedent (though judges have, contrary to your opinion, some latitude.) But the decision about what is and isn't justified by "national security" is entirely a judgement call by an individual. Kavanaugh's judgement is that the most invasive peacetime spying program in the history of the United States is just fine. That's terrifying.
>Even if the bulk collection of telephony metadata constitutes a search, the Forth 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.
He's clearly just enforcing the precedent set by the Supreme Court. When asked whether he'd have written the same thing if the case had occurred after Carpenter vs United States, he answered:
>"Do you think if Carpenter had been decided you would have written the concurrence you did in Klayman?" Leahy asked.
>"I don't see how I could have," Kavanaugh said.
If this one case is all you really need to know about Kavanaugh, then you may as well know the truth rather than a misunderstanding you took away from a single line of news article.
>though judges have, contrary to your opinion, some latitude
This is true, judges have enormous latitude to rule any way they see fit, there are a number of well known 'activist' judges serving today. However good judges understand that they're not legislators and try to enforce the law as accurately as possible.
[1] https://reason.com/archives/2018/07/18/brett-kavanaughs-four...
I don't think you understood what you were reading then. You can't just naively analyse someone applying rules other people wrote, and see any strong evidence in what rules he would write given the opportunity. In some cases (but not this one) a judge will write a side note explaining his thoughts, and even asking for the rules to be changed. But here, we just have someone saying "the Supreme Court said X must lead to Y, and this looks a lot like X, and thus it must lead to Y". The most you can gain from that is an understanding of how he interprets X; you can't learn anything about whether he thinks Y ought to follow X.
This is the organ of government that is meant to apply logic and behave consistently over time. They deal in thick stacks of paper because they consider issues in great depth including the possible ramification and unintended consequences.
There is nuance here and justice is much more complicated than the usual rough-and-tumble politics. This is an ideal opportunity to exercise long form discussion with arguments, large amounts of evidence and a goodwill attitude. Using soundbites damages the system.
Politics is polarized enough these days that you can easily determine based on that single datapoint exact where the political player stands on the spectrum even across other spectrums.
The Supreme Court can. That's what the Supreme Court does. It's very simple: what the Patriot act says is irrelevant if the result is "unreasonable" search and seizure. The Supreme Court is the final arbiter of what is "unreasonable". It really is as simple as that.
In theory we have confirmation hearings to give us some idea of how someone would behave on the Court, but as a practical matter they've never really done that, and in the current partisan environment they certainly don't do that.
> I have to wonder what criteria you believe he should be using to decide his position when answering questions like this.
My answer is: the criteria he should be using are the ones he would apply if he were seated on SCOTUS.
That's 1) not how the system works and 2) not how it really can work.
Your comment seems misplaced, since we're talking about opinions not confirmation hearings.
We're already past that point. The only reason why it's not immediately obvious yet is because of the slow pace of change on the court - but you only need to look at the kinds of questions asked at nomination hearings to see that it's all about politics of the day, and judicial impartiality is not a serious consideration anymore.
For at least 2-3 decades now, there's substantial evaluation and grooming of judges for SCOTUS that does not begin with their nomination by a long shot.
The big problem I see is the process depends on trust, and there is a distinct lack of it. If public trust can be correlated to some reasonable degree to public approval, the person doing the nominating is below the water mark on approval, and the body doing the advise and consent is even farther below his. And that explains nominee's low approval. The low public trust in two branches is now extending into the third, and regardless of the specific issues at stake no one should be pleased at further erosion of trust.
The Senate would be well advised to new rules agreeing to a 3/5ths majority confirmation for all federal judges, while also limiting the filibuster and individual senator indefinite hold on appointees. These things would improve trust in the process.
"...when your information went to a third party and when the government went to a third party, the existing privacy Supreme Court precedent was that your privacy interest was essentially zero," Kavanaugh said Friday"
This is a perfect example of the problem. The fact is that this metadata is collected without our knowledge, or is out of our control to limit its collection.
Just because a third party has metadata (obtained however, whereever and whenever), does not really give someone else (eg any government body or other private organisation) the right to claim that our privacy is null and void.