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 opinion of judges above the Constitution itself.

This “rule” of constitutional interpretation subjects the actual meaning of the Constitution to a five-person oligarchy. It utterly disregards the intent of Fourth Amendment and the protections it was meant to provide, simply erasing them from existence. This may well represent the system we have in America today, but it does nothing to protect the rights of the people from the whims of the government.

Simply put, it’s a crappy system.

Having swept the actual meaning of the Fourth Amendment away in with a procedural flourish, Kavanaugh doubles down, insisting even if the bulk collection program did constitute a search under the Fourth Amendment, it still doesn’t matter.

Why not?

Well, because the government needs to do it.

“Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.” [Emphasis Added]

Of course, the threat of a terrorist attack provides all the “special need” necessary for the government to collect your phone records without a warrant. Funny how when it comes justifying a power, action or program, the government always seems to manage to find a “special need” that trumps the Constitution.

According to Kavanaugh, the Fourth Amendment limits the federal government’s power to arbitrarily dig through your personal information as long as it “doesn’t need to.” But if the feds can prove to a politically connected lawyer whom they employ that they have a good reason for a warrantless search, they can poke around in your personal information to their hearts’ content. “Special need” means that constitutional limitation on government power vanishes like mush in a pig trough.

This provides yet another clear example as to why we cannot depend on the federal government to ever stop warrantless spying. Every branch of the government works in cahoots to justify and perpetuate violations of your rights. No matter what, the government will always find a way to rationalize the actions it wants to take.

Stopping the feds requires the utilization of power outside of the established system. State governments provide just that power.

The existence of the federal surveillance state requires state cooperation. State governments don’t have to provide it. State refusal to provide material support to the NSA, would make it extremely difficult for the agency to continue its warrantless spying. Even limiting state surveillance by restricting the use of drones, automatic license plate readers and stingray devices can hinder federal surveillance. The feds encourage and rely on states using this technology and sharing information to fill their data bases.

Stop relying on federal employees to protect your rights. Take action now at the state level. For more information on specific actions you can take, click HERE.

Mike Maharrey