|
Computers, Privacy & the Constitution
|
|
There is no Spook/Cop distinction at the Border-- By RebeccaBonnevie – 25 Apr 2018 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.The history of the border search doctrineThe 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.(1) 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.(2) 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 (3) 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 (4), 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.Shifting from evidence collection to information collectionElectronic 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. (5). 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].Effects on the other civil libertiesIt 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.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. 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.The FutureIt 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. __ 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.
|
|
