Judge Brett Kavanaugh has been confirmed as Justice Kavanaugh of the Supreme Court of the United States. While the Senate hearings were not a trial, the partisan support for Kavanaugh suggests that the sexual allegations against him were inconclusive, given the available evidence and testimony. We may never know whose truth was most accurate, but now that Justice Kavanaugh has been confirmed, there may be greater concerns about his future rulings, regarding privacy, cryptocurrencies, and blockchain technology.
For those who prefer an originalist interpretation of the US Constitution, Justice Neil Gorsuch appears to have been a very good pick, following in the footsteps of his predecessor, Justice Antonin Gregory Scalia. Gorsuch clerked for several renowned judges and justices, including SCOTUS Justices Byron White and Anthony Kennedy. Like Justice Clarence Thomas, Gorsuch is an advocate of natural law jurisprudence, which would suggest ruling in favor of people’s natural rights, rather than in favor of “big government.” And, in recently siding with the liberal side of the court on Sessions, Attorney General v Dimaya, Gorsuch showed that he was both nonpartisan in his rulings, and in favor of a reduction in the regulatory oversight that plagues the growth of small businesses in this country. Justice Brett Kavanaugh’s history paints a very different picture.
The cryptocurrency community consists of several distinct groups of people. These include: purists, who want crypto to be an alternative means of exchange to bypass the use of fiat currencies; investors who are only interested in building their wealth by investing in popular coins and promising ICO projects; and hybrids of the two. If you fall into any of these three categories, then you should be concerned about Kavanaugh’s published opinions, and his history involving the Patriot Act and the Fourth Amendment to the Bill of Rights:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The 4th Amendment was designed to protect people’s privacy rights, which includes protection from unreasonable and warrantless searches and seizures. Yet, Justice Kavanaugh sided with the National Security Agency (NSA) in the wholesale, warrantless collection of every American’s telephone metadata. In 2015, Kavanaugh denied the rehearing en banc in Klayman v. Obama, a case focused on the NSA’s collection of telephone metadata. He wrote, “The Government’s metadata collection program is entirely consistent with the Fourth Amendment.”
To put this into perspective, imagine that every month, you had to send your telephone statement to the government for its review, to determine if you are an enemy of the state. They would have a complete history of who you called, who called you, the time, and duration of each call. This is akin to a government worker sitting in front of your home, and every one of your neighbor’s homes, without a warrant, and recording all of your comings and goings, and those of your guests, for no reason other than to find a needle in a haystack. Some would consider this invasion of privacy to be an act of tyranny, yet Kavanaugh considers it to be normal and acceptable. This decision was part of Kavanaugh’s recent history, showing that his opinion on this issue has remained consistent for two decades.
Many of us remember 9/11 to be a tragic event that resulted in the deaths of thousands of innocent people. Some of us remember it as an event that was used to push an agenda that included an expansion of unconstitutional policies under the G. W. Bush Administration, and further exploited under the Obama Administration. Brett Kavanaugh served as associate White House Counsel for President George W. Bush. The citizenry was afraid, and at best it put up a weak fight against the gargantuan expansion of the national security state as it exists today, with its foundation laid out by the PATRIOT Act. According to the Electronic Privacy Information Center (EPIC), a Freedom of Information Act lawsuit confirms numerous Kavanaugh records on surveillance programs. His opinion at the time, which can be presumed to be consistent with his opinion today given his 2015 denial of appeal, was that the PATRIOT Act was a “measured, careful, responsible, and constitutional approach.” Ten minutes reading the PATRIOT Act would reveal that it is anything but “constitutional and careful.” Rather, it circumvents the 1st Amendment, 2nd Amendment, 4th Amendment, 5th Amendment, 6th Amendment, and taken to its extreme, the entire Bill of Rights as written in the US Constitution.
This mindset should send chills down your spine if you value your privacy, and your digital currency holdings. The PATRIOT Act set a precedent for government oversight on bringing currency across national borders, to the point where bills have been proposed to require the reporting of any Bitcoin or other cryptocurrency holdings when entering the United States, which can result in civil asset forfeiture of your coins, without a conviction, at the discretion of border agents who might view you as suspicious in some way, under the guise of combatting money laundering, terrorist financing, and counterfeiting.
No sane person wants acts of terrorism to occur in the US or in any other country. However, legislation is being created to take advantage of people’s fears regarding this issue, which directly infringes on people’s natural rights. Justice Brett Kavanaugh supports this legislation.
On the positive side, it’s possible that some of Kavanaugh’s opinions will be helpful to the digital currency industry, from an investment perspective. In a dozen years on the U.S. court of appeals, Kavanaugh’s record does suggest that he would rule in favor of less government oversight on areas that include climate change, net neutrality, and finance. The free market is a powerful force, which in many ways can be self-regulating, without requiring the force of government to intervene. In this way, it’s possible that Kavanaugh would be friendly to the finance industry, and fintech specifically, which may spill over into the cryptocurrency market. Such opinions would give innovators breathing room to develop new projects and products, without being forced out of the market due to unreasonable regulations that stifle innovation. Where this leaves us, as an industry, is in a place where we should exercise caution in determining where Justice Kavanaugh stands on issues that directly affect us. His rulings could theoretically turn holders of Monero and other privacy coins into criminals overnight. Or, he may surprise us and side with innovation and freedom. Whatever the case, Kavanaugh is not a SCOTUS Justice who should immediately be welcomed with open arms by innovators in blockchain and crypto coins, products, and services.
Dennis Consorte has an appetite for news and information about cryptocurrencies, blockchain, IoT, fintech, adtech, martech and other technologies. He also has over 20 years’ experience in digital marketing and content strategy.
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