Blurred lines: Spook/Cop functions and the Border Search

-- By RebeccaBonnevie – rewrite May 12, 2018

The Fourth Amendment codified the Founders' understanding of what was required to contain thuggery by the state. 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 "Spook" role, searching to collect information, is a more recent development.

The development of the border search doctrine

The Congress that created the Fourth Amendment 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. In the 1920s this changed to a contraband justification when the van full of whiskey and gin George Carroll and John Kiro were driving from Detroit to Grand Rapids was intercepted.(2) United States v. Ramsey (3) further recognized this contraband justification. In that case the border agency could open an envelope if there was reasonable belief it contained other than correspondence (though the Court repeatedly stressed 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 and 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

Electronic devices are now ubiquitous and the contraband justification clearly no longer stands up. Electronic contraband does not need to fly into JFK and go through customs to enter a country. (5). The border agencies have expanded 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 justifiation of accessing, analyzing and reviewing information. The CBP Directive No. 3340-049A: Border Search of Electronic Devices, issued in January 2018 includes both cop and spook functions. Its purpose talks about collecting evidence, conducting risk assessment and enhancing “critical information sharing” to analyze 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. Knowing that Spooks have this border search power to inspect one's electronic data 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 indicators of religion off their electronic devices. In the ecological scheme of privacy the border search infringes 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.

Can you keep the Spook functions out of the border area?

Unless legislation or guidance changes the Spook functions are part of the border agency functions. What could be done, however, is the imposition of more effective limits on the border search function.The Courts have articulated that accessing an aggregate of electronic data in electronic devices is different to traditional searches (United States v. Jones (7) and Riley v. California (8)) and in doing so have arguably opened the door to a different way of analyzing of electronic data.

Last September the ACLU filed Alasaad v. Nielsen challenging the constitutionality of the border searches of electronic devices belonging to 11 travelers, including journalists, under the First and Fourth Amendments (ten US citizens and a lawful permanent resident). The government's motion to dismiss was rejected in early May 2018. The Court said that while the border may be different to the interior of a country Riley (and Wurie (9)) indicate that electronic device searches are, categorically, more intrusive than searches of one's person or effects.(10) The Court also found a plausible First Amendment claim: unlike in Ramsey there are no First Amendment safeguards in the CBP (and ICE) electronic device policies that permit suspicionless searches in pursuit of "information".(11)

Final Word

It is up to the traveler to take measures to protect their data while they cross the border. However, 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 which could lead to the detention of the device. This makes it more important to understand technical ways to keep bits secure and make the device an empty disposable container.

Disclosure:

Some of these statements have been adapted from a paper on the border search exception for the class "Current Issues in Civil Liberties".

Notes

1 : See Act of July 31, 1789, ch. 5 §§ 23 – 24, 1 Stat. 29, 43

2 : Carrol v. United States, 267 U.S. 132 (1935)

3 : United States v. Ramsey, 431 U.S. 606 (1977)

4 : United States v. Montoya de Hernandez, 473 U.S. 531 (1985)

5 : Matthew B Kugler, "The Perceived Intrusiveness of Searching Electronic Devices at the Border: An Empirical Study" (2014) 81:3 U Chicago L Rev 1165, 1209

6 : United States v. Flores-Montano, 541 U.S. 149, 152 (2004)

7 : United States v. Jones, 132 S. Ct. 945 (2012).

8 : Riley v. California, 134 S. Ct 2473 (2014)

9 : United States v. Wurie, 728 F.3d 1 (2013)

10 : Alasaad v. Nielsen, 2018 U.S. Dist. LEXIS 78783, 43 to 45

11 : reference to Directive paragraph 5.1.3. In Ramsey the Supreme Court held that the statutory scheme permitting warrantless search of incoming international mail did not violate the constitution because it applied only when there was reason to believe the envelopes contained physical items and regulations flatly prohibited, under all circumstances, customs officials from reading correspondence without a warrant Ramsey, 431 U.S. at 623