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> | There is no Spook/Cop distinction at the Border
-- By RebeccaBonnevie – 25 Apr 2018 |
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< | It is Time to Make the “Crazy Quilt” of the Fourth Amendment
-- By RebeccaBonnevie - 16 Apr 2018 |
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> | In the beginning of the Republic the Founders codified a Spook/Cop distinction into the Fourth Amendment. The role of the cop was to search to collect evidence, and the Fourth Amendment made sure that such searches couldn’t take place “unreasonably”. The Courts interpreted this to mean without probable cause and a judicial warrant. |
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< | In Smith v. Maryland Justice Blackmun said the Court was not inclined to make a “crazy quilt” of the Fourth Amendment. I submit it is time to make the quilt. If we agree that privacy is something that society should value the third party doctrine needs to be amended to reflect the number of private corporations we interact with. |
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> | The history of the border search doctrine
The Congress that created that provision then turned around and created the first carve out from it – to ensure that importers were paying taxes the State could conduct warrantless searches at the international border. This financial interest of the State remained the justification of the border search exception for about a hundred and forty years before it changed. In the 1920s George Carroll and John Kiro drove a van full of whiskey and gin from from Detroit to Grand Rapids and were intercepted on the way. The Court found that a subsequent warrantless search of the van was not in violation of the Fourth Amendment because the agents who had searched them had reasonable belief sufficient for probable cause therefore the liquor could be admitted at trial.
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< | The Third Party Doctrine |
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> | Thus began the chapter of the border search doctrine justified by the State’s interest in stopping contraband cross its borders. Cases in this time include United States v. Ramsey where border agency could open an envelope if there was reasonable belief it contained other than correspondence (though a warrant would be needed to read any correspondence inside the envelope). United States v. Montoya de Hernandez , coming in the escalation of the “war on drugs” relied on Carroll and Ramsey to claim that warrantless suspicionless searches had long been a part of US law. Montoya de Hernandez distinguished between “routine” and “nonroutine” searches. While declining to clarify exactly what fell in each category the Court found that for a routine search of persons and effects no reasonable suspicion, probable cause or warrant was required, whereas for a more intrusive nonroutine search some level of suspicion was required.
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< | The third party doctrine says a person has no reasonable expectation of privacy in data they have turned over to a third party. This means if information has been passed to a third party the Fourth Amendment protections do not apply and a warrant is not required to access the data.
Smith v. Maryland is the judicial expression of third party doctrine. Applying the Katz privacy test the Supreme Court found that the Smith knew that the phone company was collecting numbers that were being connected to the home and therefore there is no expectation of privacy in this information.
In his dissent Justice Marshal rejected the idea that privacy is binary, that once a secret has been told to one person it is told to the world. He says that even assuming the individuals know the company monitors the calls dialed for internal reasons does not follow that they expect this information to be made available to the public in general or government in particular. He also clashed with the majority idea that information had been voluntarily given up to a third party. He says that the decision is only voluntary if you have a choice and that it is incorrect to talk about assuming risks in contexts where there is no realistic alternative. |
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> | Shifting from evidence collection to information collection
Electronic devices are now ubiquitous and the contraband justification clearly no longer stands up. To paraphrase someone else, electronic contraband does not need to fly into JFK and go through customs to enter a country. . The border agencies have shifted from a cop justification – finding evidence of contraband in a situation deemed constitutional because of a State interest “at its zenith” and a low expectation of privacy – to a spook function of reviewing information. The purpose of the CBP Directive No. 3340-049A: Border Search of Electronic Devices, issued in January 2018 says: ”[The searches] help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark, and export control violations.” [Cop functions] ”They can be vital to risk assessments that otherwise may be predicated on limited or no advance information about a given traveler or item, and they can enhance critical information sharing with, and feedback from, elements of the federal government responsible for analyzing terrorist threat information. Finally, searches at the border are often integral to a determination of an individual's intentions upon entry and provide additional information relevant to admissibility under the immigration laws.” [Spook (and some immigration) functions].
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< | Why the third party doctrine no longer works in 2018: changing societal norms
Today’s citizen puts a remarkable quantity/quality of details into the hands of private companies. The Government can aggregate discrete pieces of information from different companies to make a bigger picture. Some of the information companies hold about you isn’t even considered your information. “Shadow profiles” held by Facebook contain information about you uploaded by third parties and as such are not considered information owned by you. |
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> | Effects on the other civil liberties
It is easy to see how the Spook function operating under a warrantless suspicionless power at the border could have a chilling effect on other civil liberties. One can foresee people abridging their speech out of concern, deleting their contacts for fear of association, and deleting any religious indicators off their electronic devices. A power to compel the device to be presented in a manner that it can be searched, including providing passwords to the device and software applications contained on it seems very intrusive and potentially inconstant with the Fifth Amendment. And finally, in the ecological scheme of privacy the Spook function at the border could infringe on other people’s constitutional right to be free of unreasonable search and seizure – any information about them on the device that is being searched could also be looked at.
There are some safeguards on these powers. Any forensic search requires approval from higher ranks, but the threshold is reasonable suspicion of a commission of a crime OR a national security concern. |
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< | Giving up data is no longer a voluntary act (to a certain extent)
The third party doctrine was limited in in an analog world. Giving information to a third party involved a positive act – either appearing in public or voluntarily speaking information to the third party. Thoughts and reading materials were kept in private unless volunteered. Today is the inverse, keeping data private requires the positive acts. If one operates in a "default" world everything is tracked and logged. Mobile phones connect to cell towers giving to third parties your approximate location, our presence in public is recorded by cameras, and (in the general public's default world) one's movements on the internet, shopping habits, and reading materials are all logged. There is no realistic alternative to avoid some of these collections. |
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> | Can you keep the Spook functions out of the border area?
In a nutshell, no. Unless legislation changes to require a reasonable suspicion of a commission of a crime before a search can take place, which puts us back in “evidence collection” zone, the Spook functions are part of the border agency functions. The umbrella of "national security" justifies the increased access to electronic data. |
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< | Counteracting the time machine effect: can we force it to forget?
In her U.S. v. Jones concurrence Justice Sotomayor observed the time machine effect: the government could store records and effectively mine them for information years into the future. The third party doctrine, she said, is ill suited to the digital age. Once data has been handed over there are very few situations where it can be retrieved. |
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> | It is up to the traveler to take measures to protect their data while they cross the border, but I can foresee this creating problems. To paraphrase Eben in other areas, if you are the only person not following the flock you stand out. If you have nothing stored locally on your devices or you cannot produce a functioning passcode, you may well have created the suspicion/concern required for the forensic search. |
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< | In Google Spain v. Costeja the European Court of Justice upheld a person’s “right to be forgotten”. This is actually limited in application as it removes the data from being revealed in a Google search rather than deleting it.
In the US the right to be forgotten comes into conflict with the First Amendment – the right to be forgotten is seen as a form of censorship. An exception to this is California’s “online eraser” statute enacted in 2015. Minors can request their posts be deleted but this has some major limitations – the information might be hidden from the public but remain on a server, and the platform is not required to remove something posted by a third party about the minor including where a third party reposted the minor’s post.
The most effective way to remove information from the internet is actually to copyright it and request it to be taken down. Recently a woman was forced to copyright her naked body to obtain control of an explicit video in a revenge porn case.
Will the third party doctrine change?
The Supreme Court is currently considering Carpenter v. US which concerns a warrantless search of cellphone location data justified in part by the third party doctrine. This case and the recent Cambridge Analytica saga have highlighted for the public how much data they give to third parties – voluntarily or involuntarily.
I submit the circumstances are right for the Court to redefine the third party doctrine. In her concurrence in Jones Justice Sotomayor says “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” I submit it is necessary and it is the Supreme Court’s opportunity to do so in the judgment on Carpenter.
Reframing the third party doctrine would be a bold and dramatic move, but leaving this to Congress appears to be an acceptance of the status quo. Oral arguments in that case revealed little by way of legal doctrines. It seems that a majority of justices would be prepared to rule that the Fourth Amendment does not allow for the warrantless search and seizure of historical cell phone data, but the theories that justify the conclusion may vary.
An interesting question remains, if Carpenter results in a change to the third party doctrine, will there be a response by the political branches? |
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> | The Future
It remains to be seen how the 2018 CBP Directive is applied. It has provided slightly more structure than the 2009 Directive, but there is still a lot of discretion for CBP. Expectations are that it is likely to be applied broadly.
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Disclaimer for plagiarism purposes: some of these statements have been adapted from a paper on this topic for Current Issues in Civil Liberties but the Spook/Cop angle is unique to here. |
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