High Court Nominee Kavanaugh Sees Privacy Issues an 'Enormous' Judicial Issue in Years Ahead

Determining the right balance between national security and privacy rights will remain “an enormous issue” that the Supreme Court and lower courts will need to continue to grapple with over the next 10-20 years, high court nominee Brett Kavanaugh said during the Senate Judiciary Committee's Thursday confirmation hearing. Kavanaugh continued to discuss Chevron deference by courts to agency expertise and said he would maintain an open mind on calls to open the Supreme Court to live media coverage. Kavanaugh faced questions Wednesday on Chevron and his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC (see 1705010038 and 1809050061).

Sen. Orrin Hatch, R-Utah, asked how courts ought to interpret privacy laws in the light of changing technology, noting the U.S. v. Microsoft or “Microsoft Ireland” case and implications for the Stored Communications Act. The Supreme Court heard oral argument in February on Microsoft, in which the federal government sought review of a 2nd U.S. Circuit Court of Appeals decision that said the company didn't have to comply with a probable-cause warrant for a customer's emails in Ireland because U.S. law doesn't apply abroad (see 1802270052). The high court dismissed the case as moot in April after President Donald Trump signed the Clarifying Lawful Overseas Use of Data Act as part of the FY 2018 omnibus spending bill (see 1803230038 and 1804170040).

Microsoft Ireland “has been resolved, but the case also raised a broader question,” whether SCA clearly covered data stored abroad using technology not available at its 1986 enactment, Hatch said. Kavanaugh believes the degree to which the law or any other covers only the technology existing at the time a bill went into effect depends upon “how broadly” Congress wrote the statute. Kavanaugh believes warrant requirements at issue in Microsoft help ensure the executive branch “is not unilaterally able to invade someone's privacy, someone's liberty, without judicial oversight that ensures that there's probable cause” to “invade” someone's privacy.

Kavanaugh later told Sen. Jeff Flake, R-Ariz., that he views the Supreme Court’s recent Carpenter as an important indication of a fundamental shift in courts' understanding of privacy. The high court ruled that government collection of at least seven days of cellsite location information constitutes a Fourth Amendment-protected search (see 1807050025). Flake believes the balance of privacy and innovation “is going to make up a big chunk” of what the high court does in coming years. The ruling explains that changes in technology mean that now, “when all of our data ends up in the hands of a third-party” provider and the federal government obtains it, “your privacy is very well affected,” Kavanaugh said. He credited Chief Justice John Roberts as an important voice in changing the court's prevailing view on tech-centric cases.

Flake said Wednesday night he shares Kavanaugh's “concerns” about the scope of Chevron deference, noting he believes it “encourages Congress to abdicate” its legislative power to the courts. “I've had that frustration for years,” Flake said. Sen. Mike Crapo, R-Idaho, drilled down on Kavanaugh's views about the major rules doctrine, which emphasizes the need for clear congressional authorization for major agency-driven rules. Major rules appears to be relatively “ill-defined” exception, Crapo said. Sen. Richard Blumenthal, D-Conn., ended up not pressing Kavanaugh on his USTelecom dissent despite earlier interest (see 1808280054).

“There's no clear rule” about what qualifies under major rules, Kavanaugh told Crapo, noting his use of the exception in his USTelecom dissent. “The Supreme Court has not as yet provided specific guidance” but “you make a judgment” based in part on how many people are affected by the regulation, the amount of attention it's received in Congress and other factors. He told Flake a fundamental part of the problem with courts' interpretation of Chevron rests on judges' ability to determine when a statute is ambiguous enough to warrant granting deference to regulatory agencies. It's “really hard to get neutral principles” for determining “how much ambiguity is enough,” he said. “We should have rules of the road.”

Senate Judiciary Chairman Chuck Grassley, R-Iowa, asked Kavanaugh about whether he would support allowing TV cameras and other live media coverage into the Supreme Court during oral arguments and rulings. Grassley has long advocated allowing televised coverage of Supreme Court and other federal court proceedings via his Sunshine in the Courtroom Act.

Televised coverage of high court proceedings “isn't a very popular subject” with sitting and former justices, but “I and many of my colleagues believe that allowing cameras in the federal courthouse would open the court to the public and bring about a better understanding of the court and its work,” Grassley said. Kavanaugh would maintain an “open mind” about televised coverage of Supreme Court proceedings, cautioning he will also listen to the opinions of sitting justices, several of whom expressed support for the idea when up for Senate confirmation and then reversed their position once one on the court for a few years. The nominee believes there could be an important distinction between televised coverage of oral arguments and ruling announcements.