With the nomination of Brett Kavanaugh as associate justice to the U.S. Supreme Court, many in the tech and privacy world have started to wonder how the U.S. Court of Appeals for the D.C. Circuit judge will fill the void left by former Justice Anthony Kennedy, who retired in late June.
But if his past opinions are any guide, Kavanaugh, who was a former law clerk to Kennedy, may not be all that different from his predecessor on privacy and technology issues. Like Kennedy, Kavanaugh is hesitant to expand Fourth Amendment protections in situations concerning law enforcement collection of digital information, and leans on a broad interpretation of the First Amendment when deciding whether to regulate the digital economy.
“Justice Kennedy and Kavanaugh seemed to be aligned,” said Mutchler Lyons partner Terry Mutchler. “The reality is that with tech and privacy, I’m not necessarily sure that that is where we are going to see big, sweeping changes.”
To be sure, Kavanaugh is no stranger to some of the most-debated privacy and technology issues of the modern era. In 2015, Kavanaugh concurred in a denial for a retrial en banc of Klayman v. Obama, where the D.C. Circuit overturned a lower court ruling finding that the National Security Agency’s bulk collection of telephone call metadata required a warrant.
In his opinion, Kavanaugh argued that such metadata collection was not a Fourth Amendment search based on the Supreme Court’s decision in Smith v. Maryland, which held that a pen register, a device that records numbers called from a telephone line, does not require a warrant. He also held that “the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law.”
Michael Vatis, a partner at Steptoe & Johnson, said the opinion shows that Kavanaugh “was simply following the Supreme Court’s third-party doctrine, the idea that you don’t have a reasonable expectation of privacy that you voluntarily turn over to a third party.”
Kennedy regularly defended this doctrine, most recently in his dissent against the Supreme Court’s 5-4 decision in Carpenter v. United States, which ruled that the collection of historical cell-site location information without a warrant violates the Fourth Amendment.
The NSA case, however, wasn’t the only Fourth Amendment opinion Kavanaugh produced. In 2010, he joined with four other judges in dissenting from a denial to rehear en banc the D.C. Circuit decision in United States v. Jones. His dissenting opinion argued that tracking a suspect via GPS over almost a month without a warrant was not a Fourth Amendment violation because such movements were already exposed to the public.
In 2012, the Supreme Court ruled unanimously that the tracking in Jones was a violation of the Fourth Amendment on the grounds of the government’s physical trespass of the vehicle. In concurring opinions, Associate Justices Samuel Alito and Sonia Sotomayor stressed that long-term tracking violates expectations of privacy, putting them at ostensibly odds with Kavanaugh.
The way Kavanaugh approached a 2017 case regarding network neutrality has also drawn some parallels to Kennedy’s jurisprudence as well. The Supreme Court nominee dissented from a denial to rehear en banc the D.C. Circuit decision in U.S. Telecom Association v. FCC, which upheld the FCC’s reclassification of broadband services, in what net neutrality advocates hailed as a major victory.
Kavanaugh, however, argued that the reclassification should be overturned because Congress did authorize the FCC action. Moreover, he cited Supreme Court precedent in arguing that “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.”
Lisa Hayes, general counsel and vice president of strategy at the Center for Technology and Democracy, noted that Kavanaugh’s opinion is an example of how his and Kennedy’s approaches are closely aligned. “I think it is fair to say that both men have a broad interpretation of the First Amendment,” she said.
“You can see that Justice Kennedy lined up in evolving money as speech—for example, in Citizens United—and I think Kavanaugh, in going after the speech elements in the net neutrality case, showed a similar broad expansive definition of what the First Amendment protects and what is protected speech,” Hayes said.
Still, Hayes added that how Kavanaugh approached the FCC’s rule-making authority could highlight an area where the judge could potentially differ from Kennedy as well.
She noted that Kennedy “has not always found in favor of agency power, but has not been hostile to give deference to the agencies charged with rule-making authority.” By contrast, “Judge Kavanaugh has a pretty clear track record of being hostile to agency rule-making authority.”
Indeed, some see it as unlikely that Kavanaugh will follow Kennedy’s jurisprudence too closely. “I would tend to think that a Justice Kavanaugh would really make his own mark rather than reliably follow the path set by Justice Kennedy,” Vatis said. “But it’s hard to say exactly what that mark will be.”