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Computers, Privacy & the Constitution
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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 considered an "unreasonable" search to mean one without probable cause and a judicial warrant.Not, however, on the basis of the distinction that came to exist, because the founding legislators of the republic had no real conception of the intelligence function in government independent of the small-scale, bribery-enabled information collection by diplomats and spying in actual warfare. Until 1947, the national intelligence system had no legislative basis. The history of the border search doctrineThe 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.(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), 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 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(6) – 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 libertiesIt 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. There are some safeguards on these powers in the Directive. 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. Any balance of interests, however, it is weighted heavily in favor of the State.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 (putting us back in the “evidence collection” zone), the Spook functions are part of the border agency functions. The Courts are beginning to realize that power in an aggregate of electronic data - United States v. Jones (7) and Riley v. California (8) have arguably opened the door to a different way of analyzing of electronic data. However, even if this is so, the border zone will always be viewed as a place of high State interest that puts a heavy thumb on the scale against the privacy interests of the individual. 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's comments about social security numbers, if you are the only person not with 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. History tells us it is likely to be applied broadly.Disclaimer for plagiarism purposes:Some of these statements have been adapted from a paper on the border search exception for the class "Current Issues in Civil Liberties" but the Spook/Cop angle is unique to here.Not plagiarism, because you can't falsely assert authorship of that which you have indeed authored yourself. You shouldn't disclaim what you have no reason to deny. As for the double-counting of your effort, it's okay here, because I say it is, but disclosure is appropriate. On the substance, I think your account of the situation is correct: on the border, the US behaves as pretty much all other nation states do: it collects information and conducts political scrutiny in addition to collecting taxes and blocking contraband. This is less a change of constitutional theory and more a result of increased cognitive capacity: nations can do more at their borders with 21st-century than with 18th-century technology, and they do so. Whatever law constrains them there is less likely to be their own constitutional arrangements domestically than their external legal commitments to other states. Lacking any international consensus, to put it mildly, for subjecting border control to anti-spook regulation, it won't happen.
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