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D.C. Circuit's Judge Kavanaugh Defends NSA Data Collection

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By Casey C. Sullivan, Esq. on November 25, 2015 5:59 AM

District Judge Richard Leon has twice ordered the NSA to halt its massive, once-secret collection of telephone metadata. Twice his rulings have been overturned by the D.C. Circuit. Now, in the most recent blow to NSA lawsuits, the D.C. Circuit has refused to rehear a challenge en banc.

The D.C. Circuit's rulings have largely been procedural -- touching on standing or the appropriateness of a preliminary injunction, for example. The most recent denial was just a sentence long. But, D.C. Judge Brett M. Kavanaugh wasn't content with just a denial. He took the opportunity to expound on the NSA's metadata collection all together. The gist: the massive surveillance doesn't bother him at all.

No Fourth Amendment Problem Here

The lawsuit arose after conservative lawyer Larry Klayman sued over the NSA program, alleging that the data collection was an unconstitutional search in violation of the Fourth Amendment. The D.C. district court agreed, with Judge Leon writing:

I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.

The Second Circuit, too, sided with similar arguments.

But Judge Kavanaugh wants you to know that they're wrong. In his concurrence, he claims that the bulk data collection doesn't itself constitute a search under Smith v. Maryland. That's the 1979 Supreme Court ruling holding that a pen register, which records all numbers called on a phone, was not a search given its "limited capabilities."

If It's a Search, It's a Permissible One

But even if, somehow, the NSA's surveillance counted as a search, it's a perfectly allowable one, according to Judge Kavanaugh. As he explains:

Even if the bulk collection of telephony metadata constitutes a search, 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.

What special need justifies the NSA's program? 9/11. Judge Kavanaugh cites the 9/11 Commission Report as evidence that the NSA's program "serves a critically important special need -- preventing terrorist attacks on the United States." That need "outweighs the impact on privacy," he claims.

So a word to the wise: if you're challenging government snooping before the D.C. Circuit anytime soon, try to make sure Judge Kavanaugh isn't on your panel.

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