Judge Brett Kavanaugh, President Trump’s Supreme Court nominee, forcefully defended the National Security Agency’s dragnet collection of domestic call records, alarming privacy advocates who view the collection as unconstitutional.
It’s not yet clear if Kavanaugh’s November 2015 concurrence while serving on the U.S. Court of Appeals for the D.C. Circuit will factor prominently in his confirmation proceedings. But before he was nominated, progressive and conservative advocates expressed concern.
Privacy activists said Kavanaugh’s two-page opinion was remarkable both for its legal analysis and the fact he didn’t need to write it. He attached the concurrence to a legal order turning down an appeal challenging the NSA’s then-discontinued call record dragnet.
Kavanaugh wrote that the dragnet collection did not constitute a “search” under the Fourth Amendment, citing the third-party doctrine established by the Supreme Court’s 1979 decision in Smith v. Maryland — a common perspective among judges.
But he added that even if it was a “search” under the Fourth Amendment, the government was allowed to take the records because it had a “special need” in preventing terrorism, overriding the privacy interests of people whose records were taken without a warrant.