Think You Have a Right to Digital Privacy When Crossing U.S. Borders?
Adam Liptak published this article at the New York Times today.
I find the topic of digital privacy to be exceptionally interesting. While I don’t particularly have a problem with customs stopping me to look through my luggage, I don’t particularly like the idea of them flipping through my journal. Imagine how ridiculous this conversation would be:
Customs Agent: What’s this?
Me: My journal… it’s very persona…
* Customs Agent opens up the journal and begins reading it, making faces as he reads. *
Customs Agent: I see that you let your little sister have some champagne on New Years.
Me: Well, yes, but…
Customs Agent: Hah! So you admit it? You’re under arrest.
Essentially, that’s what happened in the cases to which Mr. Liptak is referring.
So why does the government have the right to do this? What happened to the Fourth Amendment? The answer is that the government relaxed the interpretation of the Fourth Amendment, mostly to fight drug smuggling. In 1977, the Supreme Court stated that a standard of “reasonable cause” to conduct a warrantless search of someone attempting to cross the U.S. border — later reinterpreted in some circuits to include an airport terminal where the destination is the United States. United States v. Okafor, 285 F.3d 842, 845 (9th Cir. 2002) — was less stringent than called for by the Fourth Amendment. United States v. Ramsey, 431 U.S. 606, 612-613 (U.S. 1977). Essentially, for purposes of “national protection,” simply crossing the border is considered to be adequate “probable cause” to search someone.
Setting aside the fact that the modern-day courts oddly tend to rely on a decision specifically pertaining to first-class mail in order to support the practice of warrantless searches at the U.S. border (United States v. Montoya De Hernandez, 473 U.S. 531 (U.S. 1985)), let’s examine some black letter law. To refresh your memory, here is what the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Supreme Court has the ultimate power to interpret the Constitution, and it has decided that by entering into the U.S., there is probable cause to search you. Of course, it could (and should) be argued that the furthest thing from the Ramsey court’s mind was picking through the personal effects of travelers.
I’m not going to advocate one way or the other; I understand the arguments that entrances into the U.S. are particularly strong vulnerabilities, but I also believe that interpretation of the Constitution should be relatively constant, and decisions shouldn’t vary as is convenient.
Do you think that Customs should have the right to pick through your data? Additionally, should you have to hand over your encryption key if you’ve encrypted files?
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One thing that should be taken into consideration when evaluating the national security argument is that while the contents of your suitcase might pose a material danger to the US – bombs, smallpox, et al – which is immanetized by bringing them through a border crossing – having the bomb in the country is what makes it a danger – the same is not true of the contents of your hard drive. While there are some data that could be harmful, like a virus or a terrorism plan, physically bringing them into the country doesn’t make it any easier for them to wreak their havoc. The transmission of electronic data is largely unaffected by political boundaries, so bringing data physically within the country doesn’t actually increase the data’s ability to affect it.
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