
NSA metadata program “consistent” with Fourth Amendment, Kavanaugh once argued - colejohnson66
https://arstechnica.com/tech-policy/2018/09/even-after-nsa-metadata-program-revised-kavanaugh-argued-in-favor-of-it/
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nickysielicki
I don't like articles like this. The article itself is great _if you actually
read it_ , but in a world of news aggregators I think most people read the
headline and promptly come to their conclusion: Kavanaugh is another stooge,
just like Scalia before him, claiming righteousness under the flag of
"originalism" but in practice serving corporate and partisan interests through
legal (read: gobbledygook) bullshit.

As much as I want these programs to be ended, the fact of the matter is that
there's no coming back from a government with broken courts. If the supreme
court ever gets to the point where one party is packing it and they're
ignoring precedent, that's game over. People will be shooting each other.
Don't believe for one second that our country or our time in history is
special, it's on the table and as long as humans are forming institutions it
will always be on the table.

You can equally argue that there's also no coming back from a government that
no longer respects civil liberties, but that's irrelevant to a conversation
about who we ought to put on the courts. Kavanaugh is looking to become a
member of the least oscillative part of American government, and I'm
personally glad that he places the sanctity of that institution over
everything else --- yes, even the values of the constitution.

To anyone who reads the full article and comes away believing that Kavanaugh
is in the wrong, I have to wonder what criteria you believe he _should_ be
using to decide his position when answering questions like this. It's
unreasonable to say, "He should just look at the constitution and see that
these programs are at odds with the 4th amendment and we'll just fix
everything in one fell swoop." The court can't operate like that.

Be angry at the precedent. Be angry at the legislators who wrote the Patriot
Act. Be angry at the ISPs for cooperating so freely. Be angry at yourself for
not making or using technology that makes their spying irrelevant. But don't
blame the court for putting their responsibility to self-preserve over their
responsibility to bail society out of our collective bad decisions.

edit: s/precedence/precedent/g

~~~
rayiner
> I'm personally glad that he places the sanctity of that institution over
> everything else --- yes, even the values of the constitution.

The Constitution isn’t a set of “values” against which judges must assess law.
It’s a written set of directives and constraints. It’s a contract that defines
the outer scope of democracy.

The 4th amendment, likewise, doesn’t articulate a set of “values.” It says:

> The right of the people to be secure in _their_ persons, houses, papers, and
> effects, against unreasonable searches and seizures, shall not be violated

Interpreting the word “their” does not require resort to “values.” Google’s
server logs are not “your” data just because they record a hit from your
computer. A phone company’s call records likewise are not “your” data. It’s
not about “values,” but the plain meaning of ordinary English words.

Blaming “precedent” here is even more misguided. Precedent long ago departed
from the text of the 4th amendment, importing this expansive “reasonable
expectation of privacy” concept into a document where the word “privacy” or
anything like it never appears.

If we get the courts to strike down things like metadata collection in 4th
amendment grounds, it will only be because the courts ignore what the
Constitution _says_ , expands this precedent, and impkses one group’s “values”
onto the public.

~~~
DINKDINK
Your argument is pivoting on the definition of ownership of data, that the
fourth amendment doesn't apply to metadata because it's not 'your' data.

Even if we accept that premise, the fourth amendment still protects against
"unreasonable searches and seizures". This means that the government needs to
go through a meaningful review process to take possession of other people's
property. This is unquestionable not the case with PRISM / FISA court
approvals. _Blank checks for the government to access whatever data it wants
is unreasonable searches and seizures_

The fact of the matter is that metadata is _somebody 's_ property and by
forcing all third-parties to be unable to defend their data about their
customers, the government denies enterprises the ability to compete in the
marketplace on as many privacy features.

~~~
caseysoftware
I'm reading a great book - Habeas Data - on specifically these issues. The
idea of the metadata being separate from the actual data (in terms of
surveillance and warrants) became a thing in the late 70s.. a case involving
ATT in 1977 iirc.

Since that time, it's been generally understood that to get the actual data
requires a warrant whereas the metadata just requires asking whoever is
storing the metadata.

If we want to roll that back - and I do - we need to demonstrate that the
metadata is just as telling/informative/sensitive/damaging as the data itself
and therefore should be protected under the same standards.

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cmurf
A lower court judge asserting consistency of a binding precedent by a higher
court is not news. The question is, what does this judge think,
professionally, legally, without respect to precedent, which as a SCOTUS
justice he's able to reconsider, are limits to state surveillance if any at
all?

For at least 2-3 decades now, there's substantial evaluation and grooming of
judges for SCOTUS that does not begin with their nomination by a long shot.

The big problem I see is the process depends on trust, and there is a distinct
lack of it. If public trust can be correlated to some reasonable degree to
public approval, the person doing the nominating is below the water mark on
approval, and the body doing the advise and consent is even farther below his.
And that explains nominee's low approval. The low public trust in two branches
is now extending into the third, and regardless of the specific issues at
stake no one should be pleased at further erosion of trust.

The Senate would be well advised to new rules agreeing to a 3/5ths majority
confirmation for all federal judges, while also limiting the filibuster and
individual senator indefinite hold on appointees. These things would improve
trust in the process.

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cmroanirgo
From the article:

"...when your information went to a third party and when the government went
to a third party, the existing privacy Supreme Court precedent was that your
privacy interest was essentially zero," Kavanaugh said Friday"

This is a perfect example of the problem. The fact is that this metadata is
collected without our knowledge, or is out of our control to limit its
collection.

Just because a third party has metadata (obtained however, whereever and
whenever), does not really give someone else (eg any government body or other
private organisation) the right to claim that our privacy is null and void.

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danjoc
Blame the judge for the laws congress passed. Blame the congress for the law
the executive misused. Blame the executive for misleading the fisa judges.
It's a perfect circle.

