The Senate Judiciary Committee is charged with scrutinizing whether U.S. Circuit Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court by President Trump should be confirmed. Three days of lengthy hearings, however, failed to meaningfully address crucial questions about how old law designed for analog situations might apply to our digital age. It would be premature for Congress to vote on any confirmation before a record of the judge’s views on new technologies and markets is thoroughly developed.
It would be premature for Congress to vote on any confirmation before a record of the judge’s views on new technologies and markets is thoroughly developed.
This summer, we published a detailed list of suggestions for questions the Senate should ask Judge Kavanaugh during his confirmation hearings. We recommended that Senators explore the nominee’s views of mass surveillance and law enforcement access to digital information, net neutrality and innovation (spanning both patent and copyright law), and competition and antitrust law.
But after three days of hearings, the Senate process yielded only breadcrumbs as answers to the questions we identified as crucial for assessing how Judge Kavanaugh might rule in cases impacting your rights online.
Of the topics we identified, mass surveillance was one of the few discussed in last week’s hearings. During an exchange with Senator Patrick Leahy (D-VT), Judge Kavanaugh—who worked in a senior capacity in the White House under the Bush administration—flatly declared that he had no role in the “Terrorist Surveillance Program,” one of the Bush administration’s many mass surveillance programs.
Kavanaugh did, however, allude to other mass surveillance programs. In response to Sen. Leahy’s questions about his role, he stated that he “can’t rule out” having participated in the approval process. His answer raises important questions, including whether he misrepresented key facts under oath during his confirmation to the U.S. Court of Appeals for the District of Columbia, as some documents may suggest.
EFF has been fighting in the courts for well over a decade, across multiple federal court proceedings, to establish the unconstitutionality of warrantless bulk surveillance. The Supreme Court may one day rule on whether the government’s warrantless mass surveillance programs violate constitutional rights, as we (and many others) have argued.
Judge Kavanaugh’s potential participation in crafting these controversial and unconstitutional programs means not only that he may be inclined uphold them, but also that he may have an interest in their continuation. Judge Kavanaugh refused to comment on circumstances in which he might recuse himself from a case. His refusal to address how he would handle such a conflict of interest is deeply troubling, especially because Supreme Court Justices face no higher ethical authority and have previously ruled on cases despite apparent conflicts of interest.
Setting aside unresolved ethical questions, substantive questions remain not only about Judge Kavanaugh’s previous role in approving unconstitutional government programs, but also his views on the legal justification for mass surveillance.
In another line of questioning from Senator Leahy, Judge Kavanaugh dodged Leahy’s question about the Fourth Amendment rationale for surveillance. In Klayman v. Obama, Judge Kavanaugh presented a troubling analysis: he found that phone companies could turn over customer records to surveillance agencies under an outdated theory known as the “third-party doctrine,” and that even if that rationale were insufficient, the national security interest presents a “special need” to disregard the Fourth Amendment’s warrant requirement.
Senator Leahy asked Judge Kavanaugh why he went out of his way to find that the government has the authority to collect records of all domestic phone calls even though Congress had recently passed the Leahy-Lee USA Freedom Act and the Presidential Civil Liberties and Oversight Board had recently issued a report concluding that mass surveillance of telephone records was neither necessary to stop terrorism, nor even helpful.
Under oath, Judge Kavanaugh acknowledged that the recent U.S. v. Carpenter decision negates his analysis of the third-party doctrine, but he side-stepped his troubling legal analysis regarding the Fourth Amendment justification for mass surveillance, which was at the heart of Sen. Leahy’s question.
Judge Kavanaugh’s failure to address his dangerous reasoning in Klayman only presents more questions: Would the judge find that warrantless domestic mass surveillance programs violate the Fourth Amendment when they collect enough data to create a detailed picture of the lives of millions of Americans—including where they go and who they associate with, like the records at issue in Carpenter? Or would he find such programs justified on national security grounds? Also, would the judge recognize the violation of First Amendment freedom of association implicit in such pervasive surveillance of Americans?
These are questions that must be answered before the Senate votes on whether to confirm Judge Kavanaugh’s nomination.
Net neutrality was another topic on our list that Senators discussed. Judge Kavanaugh was more forthcoming about his opposition to net neutrality, which a majority of Americans support, than his position on mass surveillance. Senator Amy Klobachaur (D-MN) asked why the judge went “beyond the bounds of what the parties argued to reach a constitutional issue” in his dissent from the D.C. Circuit’s upholding of net neutrality. Kavanaugh attempted to defend his unconvincing position, and indicated that if a net neutrality case were to come before the Supreme Court, he would likely find (again) that requiring Internet service providers to carry content violated their First Amendment rights. This admission should alarm observers concerned about digital rights.
Senators have a constitutional obligation to scrutinize the nominee. But Senators have to get meaningful answers from the nominee about how his jurisprudence could impact the future of digital rights. Having not yet secured answers, the Senate cannot cast an informed vote on Judge Kavanaugh’s nomination.
We urge the Senate to continue the examination process and to vote on Judge Kavanaugh’s confirmation only after securing answers to the crucial questions we’ve raised. In addition to exploring his judicial analysis of mass surveillance, Senators should also probe his views on law enforcement access to digital content, as well as the antitrust, patent, and copyright principles that play so crucial a role in innovation and competition.
The future of digital rights hangs in the balance.