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RebeccaBonnevieFirstPaper 6 - 26 Apr 2018 - Main.RebeccaBonnevie
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There is no Spook/Cop distinction at the Border | | | The history of the border search doctrine
The Congress that created that provision also created an exception to 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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< | 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 , which took place 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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> | 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 , which took place 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. | | | Shifting from evidence collection to information collection | |
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< | 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 accessing, analysing and reviewing information. The purpose of the CBP Directive No. 3340-049A: Border Search of Electronic Devices, issued in January 2018 includes both cop and spook functions, talking about collecting evidence and conducting risk assessment and enhancing “critical information shaing” with elements of the federal government responsible for analyzing terrorist threat information.
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> | 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 accessing, analyzing and reviewing information. The purpose of the CBP Directive No. 3340-049A: Border Search of Electronic Devices, issued in January 2018 includes both cop and spook functions, talking about collecting evidence and conducting risk assessment and enhancing “critical information sharing” with elements of the federal government responsible for analyzing terrorist threat information. | | | Effects on the other civil liberties
It could be said that warrantless, suspicionless searches that provide the state access to large swathes of personally revealing data differ little from the notoriously general warrants and writs of assistance that the framers of the Fourth Amendment were trying to prevent. This 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. And 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 third parties on the device that is being searched will be seen and analyzed. |
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