Trump Supreme Court Pick Kavanaugh Has Privacy Track Record

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By Daniel R. Stoller

Judge Brett Kavanaugh, tapped by President Donald Trump for a seat on the U.S. Supreme Court, would bring a history of ruling in privacy cases at a time when more privacy and emerging technology disputes will reach the high court.

In his 12 years as a judge on the U.S. Court of Appeals for the District of Columbia, Kavanaugh has dealt with a range of tech-related and Fourth Amendment privacy cases. The former law clerk for retiring Justice Anthony Kennedy has also ruled on matters related to the federal Freedom of Information Act, employee monitoring, and NSA surveillance, Bloomberg Law data shows.

For example, Kavanaugh dissented in a plaintiff’s request that the full bench of circuit judges rehear United States v. Jones (D.C. Cir. 2010). Kavanaugh argued that an individual’s Fourth Amendment privacy rights weren’t violated due to lack of a warrant for police surveillance and law enforcement’s installation of a GPS device on a car for about a month.

The Supreme Court didn’t agree with Kavanaugh two years later, affirming that installing the GPS on the suspect’s vehicle intruded upon his privacy interests.

Kavanaugh also has weighed in on administrative law issues that have a tech bent. In his 2017 opinion, Taylor v. Huerta (D.C. Cir.), Kavanaugh joined a majority that overturned a rule from the Obama administration requiring individuals to register their drones with the government.

As a Washington-based judge, Kavanaugh handled many FOIA and Privacy Act claims, often filed against the government.

High Court Privacy Track Record

The Supreme Court in coming years is likely to take up more cases related to privacy, technology, and security concerns.

Law enforcement requests for stored data and companies’ liability for data breaches are among the type of privacy cases likely to confront Kavanaugh and the court, Paul Rosenzweig, a former Department of Homeland Security official and senior fellow of cybersecurity and tech policy at R Street Institute, told Bloomberg Law.

“In the next few years we may see cases involving DNA testing, facial recognition, biometric, large-scale data analytics, predictive artificial intelligence and much more,” said Rosenzweig, a former Eleventh Circuit law clerk for Judge Lanier Anderson III.

The high court in recent years has considered a steady flow of privacy matters, highlighted by Carpenter v. United States (2018). The court ruled 5-4 the government needed a warrant to acquire historic cell-site data if it’s related to a criminal investigation. Kennedy joined the dissent.

Kennedy was in the dissent or was part of unanimous rulings in more recent privacy decisions. The Supreme Court recognized privacy protections for using GPS to track cars, Jones, and to search mobile phones incident to an arrest, Riley v. California (2014).

Kennedy also wasn’t a decisive factor in Spokeo v. Robins (2016), when he joined the 6-2 majority. The court in Spokeo held that alleged injuries must be both concrete and particularized to meet Article III’s standing requirement for suing in federal court. Further, plaintiffs need to allege more than statutory violations to sue in federal court.

Federal circuit courts have used Spokeo to both toss and keep claims early in judicial proceedings. The Supreme Court decided to not take up Attias v. CareFirst, Inc. (February 2018), which relied on Spokeo, possibly signaling that the high court is confident in its ruling.

What’s Next?

If confirmed, Kavanaugh’s first crack at a privacy case would be in Frank v. Gaos (cert. granted 2018), a case that the high court has accepted on its docket for the 2018-2019 term. The justices will be called upon to decide whether cy pres settlements—money awards given to non-plaintiffs, usually charities—are fair when no monetary relief is given to class action plaintiffs.

The data privacy case, which involves Alphabet Inc.'s Google, could have an impact on future privacy, data security, and data breach class settlements, as many wrap up quickly with a deal before a jury or judge can rule on the merits.

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