Replies

I hear you, and that is definitely something to consider in his case. I am inclined to accept the candidate if Trump does, and he appears to.

However, while I am not one to throw out the baby with the bathwater on many things (so I am not sure I would say NO to Kavanaugh just on the basis of this) but what Kavanaugh said is pretty clear, and is something I DO disagree with: He fully supports, and went out of his way to say so, the retention of five years worth of phone/email/text messages obtained from service providers is, in his opinion perfectly constitutional, even if done without ANY “specific” reason to collect it whatsoever.

My main objection is how that five years of data collected without any authorization ties into what is called the “Three Hop Rule” which hinges on what’s known as “hop” or “chain” analysis.

When the government identifies a suspect, it can look not just at his phone records, but also the records of everyone he calls, everyone who calls those people and everyone who calls those people.

If the average person called 40 unique people, three-hop analysis would allow the government to mine the records of 2.5 million Americans when investigating one suspect! How many people, over five years, would you communicate with?

If you did tech support,and talked to some person who talked to some person who talked to some person who was suspected of something, ALL of your phone records over five years could be legally looked at!

Granted, even the most vociferous advocates of the ability of the government to view personal records recognized in 2015 that the “Three Hop Rule” was WAY too broad and changed it to the “Two Hop Rule”, but I think even that is a violation of privacy because the government can still legally comb through the private data of hundreds of thousands of people in just one case.

So that is my issue, that he supports that. This is the key segment from Kavanaugh (in my opinion) if you don’t want to read the whole thing below it!:

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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.
***********************************

In that statement, he kind of dodges it by saying it is “stare decisis” which is a fancy term for accepting precedents in cases. But it is clear on two counts that he BELIEVES in the collection of data on a massive scale and storing it:

First, because he didn’t have to write this piece but did voluntarily.

Second, his language is clear as he sticks up for it.

Anyway, sorry for the length of this response...if you are interested, here is the text of his concurring opinion on the notorious (for him) case:

***************************************************************************************

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: November 20, 2015
No. 15-5307
LARRY ELLIOTT KLAYMAN, ET AL.,
APPELLEES v. BARACK OBAMA, ET AL.,
APPELLANTS
ROGER VINSON,
APPELLEE
On Emergency Petition for Rehearing En Banc Review
of this Circuit=s Order of November 16, 2015
Larry E. Klayman was on the emergency petition for
rehearing en banc.

Before: GARLAND, Chief Judge, and HENDERSON,
ROGERS, TATEL, BROWN, GRIFFITH, KAVANAUGH, *
SRINIVASAN, MILLETT, PILLARD, AND WILKINS, Circuit
Judges.

O R D E R
Upon consideration of the emergency petition for
rehearing en banc, and the absence of a request by any member
of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk

A statement by Circuit Judge Kavanaugh, concurring in the
denial of rehearing en banc, is attached.

KAVANAUGH, Circuit Judge, concurring in the denial of
rehearing en banc: I vote to deny plaintiffs’ emergency
petition for rehearing en banc. I do so because, in my view,
the Government’s metadata collection program is entirely
consistent with the Fourth Amendment. Therefore, plaintiffs
cannot show a likelihood of success on the merits of their
claim, and this Court was right to stay the District Court’s
injunction against the Government’s program.

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.

Even if the bulk collection of telephony metadata
constitutes a search, cf. United States v. Jones, 132 S. Ct. 945,
954-57 (2012) (Sotomayor, J., concurring), 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.
See Vernonia School District 47J v. Acton, 515 U.S. 646
(1995); Michigan Department of State Police v. Sitz, 496 U.S.
444 (1990); United States v. Martinez-Fuerte, 428 U.S. 543
(1976); United States v. Edwards, 498 F.2d 496 (2d Cir.
1974); see also Indianapolis v. Edmond, 531 U.S. 32, 47-48
(2000). 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.

To be sure, sincere and passionate concerns have been
raised about the Government’s program. 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.

In sum, the Fourth Amendment does not bar the
Government’s bulk collection of telephony metadata under
this program. I therefore agree with this Court’s decision to
stay the District Court’s injunction