Future Tense

Brett Kavanaugh Has Some Alarmingly Outdated Views on Privacy

The future Supreme Court will likely face questions about police drones, facial recognition software, and big data. But Trump’s nominee is still stuck in the age of beepers.

Supreme Court nominee Brett Kavanaugh listens to Sen. Rob Portman (R-OH) talk about the judge's qualifications.
Supreme Court nominee Brett Kavanaugh listens to Sen. Rob Portman (R-OH) talk about the judge’s qualifications. Chip Somodevilla/Getty Images

Starting in 2012, the Supreme Court’s approach to digital privacy has undergone a seismic shift. In a series of recent cases on location tracking and cellular phone searches, the court has recognized that, when it comes to big data, old rules about our expectations of privacy may not apply. Because information can now be gathered, stored, and analyzed cheaply, the Supreme Court has recently found that Fourth Amendment protections must be carefully recalibrated to prevent unchecked police power.

Supreme Court nominee Brett Kavanaugh, however, has exhibited a contrasting and outdated understanding of privacy. As important questions come before the court in the future—on police drone surveillance, on the use of facial recognition software, on government access to the vast troves of different kinds of digital data companies hold on us—it’s crucial to understand where Kavanaugh stands.

Up until the recently decided Carpenter v. United States, the biggest hurdle to Fourth Amendment protection was the oft-repeated reasoning that if you share information with somebody, you no longer have an expectation of privacy in it. That reasoning suggested both that you have no expectation of privacy in public spaces and that you have no expectation of privacy in anything you do online. As many have argued, this is clearly wrong. We share things contextually. For example, if you attend a public protest, you expect others to see you but don’t necessarily expect your employer will find out. And when a person “shares” things—such as her location—with a search engine or her telephone provider, she doesn’t expect that the government will be tracking her device’s every move too.

Older Supreme Court cases (Smith v. Maryland, United States v. Miller) offered a two-pronged explanation to justify why you don’t have an expectation of privacy if you share information like your call records, your banking information, or, potentially, your device’s location data: First, that kind of information isn’t particularly private or sensitive in nature, and second, you assume the risk it will be shared further by agreeing to share it with service providers like a website or your phone company in the first place.

In more recent cases, however, the court began to undermine that first prong of reasoning. In the court’s unanimous U.S. v. Jones decision—a case about whether police needed a warrant to put a GPS tracker on someone’s car for 28 days—five justices reasoned that location data isn’t just location data any more. When gathered in great enough detail and great enough quantity, it reveals deeply private things about a person. Location data shows whether you have been to see a medical specialist, regularly gone to church, stopped by the liquor store, and more. Location data is now other data: your sexual preferences, your medical problems, your political ideas, and your addictions. Jones shows the beginning of an understanding by the court that, in an age where information can be cheaply collected, stored, analyzed, and cross-referenced with other information, what was once not particularly private information can now reveal a lot about a person.

In two subsequent cases, Carpenter and Riley v. California, the majority of the court reiterated this point: In the age of big data, formerly nonsensitive information can become sensitive information because of the inferences one can make from it. In Carpenter, the majority of the court decided that historic location information is sensitive information (in this case, Timothy Carpenter’s cell-site records from wireless carriers, which law enforcement had obtained without a warrant). The fact that you “share” it with your phone company passively as you use your device does not do away with your legitimate expectation of privacy. Now, under Carpenter, police must get a warrant before obtaining historic location information of more than six days in duration from your cell service provider.

Carpenter, however, leaves open significant future questions. And this is where Kavanaugh’s opinions become crucially important. Chief Justice John Roberts indicated in Carpenter that the court’s holding did not extend to “conventional surveillance techniques and tools, such as security cameras.” Presumably, this is because an individual stationary security camera doesn’t give rise to the same concerns about sensitive inferences as persistent, mobile tracking of an individual. But what if the camera is mounted on a police drone and follows someone? Or what if that one camera’s footage is combined with other cameras’ footage, and facial recognition software is used to track an individual over multiple locations over time? Or what if the government can infer the same kind of sensitive information—about your health, your associations, your private thoughts—from other data previously deemed not sensitive, such as your phone records? These are the kinds of questions likely to come before courts in the wake of Carpenter. This is why Kavanaugh’s outdated views of privacy should raise significant concerns.

Take, for example, his opinion in the Jones case. As a D.C. Circuit Court of Appeals judge, Kavanaugh wrote separately in the lower court’s decision in the GPS tracking case and indicated that he did not buy the court’s “novel aggregation approach to Fourth Amendment analysis.” Kavanaugh, in other words, doesn’t believe that location data can reveal more than location data. Instead, he suggested that a 1983 case about using beepers to track a vehicle should dictate the result of a current case about GPS surveillance, just because both involved a vehicle traveling in public streets. Kavanaugh failed to recognize what even Justice Samuel Alito, a longtime supporter of law enforcement powers, did in Jones: that technology today makes gathering, storing, and making inferences from vast amounts of data over long periods of time so much cheaper and easier as to pose fundamentally different questions than a case decided based on beeper technology in 1983. Police in 1983 were still limited by practical constraints: They couldn’t, even with beepers, realistically follow every car all the time. GPS and cell-site location data are different. As the court wrote in that 1983 case, “if such dragnet-type law enforcement practices … should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Unlike the current majority on the Supreme Court, Kavanaugh doesn’t seem to understand that we live in a different technological world.

Kavanaugh suggested that whether a person has an expectation of privacy against location tracking should hinge on whether police have physically encroached on a “constitutionally protected area.” If police place a tracker on your back or a tiny robot in your pocket, where it might enter your private residence or eavesdrop on your conversations, Kavanaugh might be concerned. The late Justice Antonin Scalia in his majority opinion in Jones also referred to physical intrusion for purposes of gathering information—but Scalia, unlike Kavanaugh, did not explicitly reject the idea that nonsensitive information might become sensitive in the aggregate. The physical intrusion approach by itself doesn’t account for the majority of surveillance in the digital age. The government does not need to physically encroach on your property to obtain private information. It can readily go straight to the companies that house our digital private lives instead.

Kavanaugh’s opinion in Jones shows where he would have sided in Carpenter: squarely with those justices, such as Justice Clarence Thomas, who called for a return to that property-based theory of the Fourth Amendment. It’s a view that, in practice, is extraordinarily deferential to the government. And Kavanaugh has gone further with his willingness to be deferential. In a case addressing a Fourth Amendment challenge to the National Security Agency’s bulk collection of domestic phone records, Kavanaugh wrote that even if phone records were considered to be private information under the court’s developing reasoning in Jones, he would still defer to the government’s national security interests and allow bulk collection to continue. This makes him not just nominally conservative but a marked outlier on privacy. Even Congress, infamously gridlocked along partisan lines, deemed the NSA’s bulk phone records collection offensive enough to enact bipartisan legislation—the U.S.A. Freedom Act—to stop it.

It’s possible that Kavanaugh will operate differently as a Supreme Court justice. Maybe he won’t feel as tightly bound by precedent and will rely on more recent case law to drastically shift away from the views expressed in his past decisions. But that’s not what his track record indicates. Privacy has often been an issue that bridged opposite sides of the political spectrum, enabling individual liberty to prevail in what otherwise is an increasingly powerful state. But this cross-partisan alliance is not something we can afford to take for granted. The court only narrowly protected our digital privacy in Carpenter, in a 5–4 opinion. As we discuss Kavanaugh’s nomination, and as hearings progress, pinning down his opinions on privacy will be essential.