According to at least one federal judge, warrantless bulk collection of phone data belonging to you and every American fits nicely within the parameters of the Fourth Amendment.
In other words, this federal government employee agrees with the federal government that it has the power and authority to collect your phone records, in mass, with no judicial oversight.
Last Friday, the U.S. Court of Appeals for the D.C. Circuit denied an emergency petition for a rehearing before the entire court after a select panel of judges decided to lift a lower-court injunction against the NSA’s bulk collection program.
In his concurring opinion, Judge Brett Kavanaugh expressed absolutely no doubt about the constitutionality of the federal spy program.
“In my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.”
He gave two reasons, both equally dubious in light of the original meaning and purpose of the Fourth Amendment.
First, Kavanaugh claimed bulk collection of phone records does not constitute a search.
“The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735.”
He goes on to insist, “That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.”
In Kavanaugh’s mind, no matter how wrong a higher court may be, all lower courts must perpetuate the error for all time, raising the…