During day three of the Senate Judiciary Committee’s nominations hearings, Senator Patrick Leahy asked Judge Kavanaugh about privacy and government surveillance. (6:20) Senator Leahy stated “In your concurrence in Klayman v. Obama you went out of your way to say that not only is the dragnet collection of American’s telephone records by the NSA okay because it’s 'not a search,’ you also said that 'even if it is a search, it is justified in order to prevent terrorism.’” Senator Leahy pointed out that the Privacy and Civil Liberties Oversight Board found that the legal authorities in the Klayman case had not prevented a single terrorist act. Leahy asked, "Why did you go out of your way to write an opinion stating that the program met a critical national security need when it had already been found by our national security people it made no concrete difference in fighting terrorism?” Judge Kavanaugh said that the recent Supreme Court decision in Carpenter was a “game-changer” and that had it been law at the time, he could not have written the concurrence in Klayman. Senator Leahy also questioned Judge Kavanaugh on U.S. v. Jones, asking “do you believe that there becomes a point where the collection of data about a person becomes so pervasive that a warrant would be required even if the collection of one bit of the same data would not?” Judge Kavanaugh did not answer this question directly. Senator Flake commended Senator Leahy’s questions, noting that future of privacy was a critical issue for the Committee to consider.
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