Wiretaps, surveillance, stop-and-frisk … Oh my! When the Founding Fathers created our great nation many such technologies weren’t part of the zeitgeist. Yet, how sage they were to understand that it’s not the set of tools that governmental authorities utilize to thwart our personal freedoms but rather it’s the set of tactics. Unwarranted searches in the 18th century were affected by Red Coats busting down the doors of seditious actors who, dare as they did, criticized the crown from across the pond. The monarchy would regularly dispatch its forces throughout the colonies to tamp down what we would now call free speech, the exchange of ideas.
Later, after our independence was solidified and the U.S. Constitution became the supreme law of the land, it was time to finally and formally protect our citizenry from such unreasonable searches. The protection came by way of the Bill of Rights, particularly in the First Amendment and more to its point in the Fourth Amendment, which provides:
“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 Fourth Amendment is routinely invoked in criminal law cases in America. When the cops suspect criminal activity, band together with a plan to arrest the suspects, caravan out to their criminal lair in the wee hours of the morning, and kick in the deadbolt to seize, for example, drugs and paraphernalia, computers and phones, and then arrest the occupants, they first need to get a warrant to do so. Otherwise, even the greenest public defender will have the case tossed pursuant to the abridged protections provided under the Fourth.
Typically, the hurdle to overcome to get a magistrate judge’s ink on a warrant isn’t much higher than a dime. Probable cause or reasonable suspicion are commonplace standards. When you and I read “probable” and “reasonable,” even “suspicion,” these are all terms of art, and the police authority is favored in the equation. This makes sense. The state cannot build an iron clad case at this stage. Only after potential evidence is obtained (lawfully) and witnesses are interviewed (lawfully), can the case begin to appear in the other critical Constitutional light of “beyond a reasonable doubt.” At the initial stages, though, probable and reasonable information is enough to get a warrant.
In 2014 the case of Riley v. California arrived at One First Street, NE, in Washington, D.C., the Supreme Court Building. David Riley was a member of San Diego’s Lincoln Park Gang.
He and others in the gang opened fire against a rival gang.
A few weeks later Riley was arrested on an unrelated motor vehicle charge when the guns and other evidence were obtained through impoundment.
Ultimately, police tied him to the shooting after his arrest partially based on their analysis of his mobile phone, which reflected many indications of his affiliation with Lincoln Park.
It was not the vehicle search that attorneys claimed to affront Riley’s rights. That was part of the impound procedures, and legal. However, his attorneys claimed when police examined his phone without a warrant, it was akin to arriving at the suspect’s house in a predawn, unwarranted raid.
When Riley's case finally reached the Supreme Court, it issued a unanimous decision that indeed his Constitutional rights were offended, and therefore the evidence seized, and any so-called fruit from that tree, was to be suppressed. The Court reasoned that the illegal search of the phone without a warrant could not fit into the Fourth Amendment exception that, following an arrest, a warrantless search may be conducted in order to protect officer safety and preserve evidence. Digital data is not a relatable issue and doesn’t fit into the exception. A pat-down, where an arresting officer may search one’s clothing is such an exception. Ones and zeroes are not.
So, how is it that in 2017 over 30,000 people’s phones, laptops, and other digital devices were searched without their consent and without a warrant? Enter the Department of Homeland Security’s Customs and Border Protection forces. Incidentally, “CBP” does not stand for Customs and Border patrol; it’s Protection. The Riley Court did not extend its ruling to border protection. Sen. Ron Wyden (D-Ore.) describes the borders, such as airports and land crossings, as a “rights-free zone for Americans who travel.” Yes, I am talking about much more than international travelers visiting our nation. Those 30,000 cases involved many of your neighbors and mine.
Wyden alongside Sen. Rand Paul (R-Ky.) are trying to change this landscape, which reflects the pre-Revolution era of warrantless searches by the state. Last week they introduced the Protecting Data at the Border Act. It would limit law enforcement’s authority at the borders. It would compel CBP officers to obtain a warrant based on probable cause before accessing Americans’ digital lives.
You must by now understand how much of one’s life—finances, relationships, business information, communications, etc.—can be maintained on a smartphone, up to and including biometric data. How much more personal can it get?
Likewise, agents could no longer deny entry to anyone who refuses to give up their passwords, PINs, or social media login information, a practice that currently sends lawful Americans away from entering their homeland. As with any security-focused law, there are exceptions aplenty for the more egregious cases. Incidentally, Rep. Ted Lieu (D-Calif.) introduced a similar bill in the House.
Security in our current climate is pinnacle. However, does not security begin with being secured as against some of the exact same conduct that the British crown exercised against our forefathers who created America? You will have a tough argument to bear contra that statement.
Ed is a professor of cybersecurity, an attorney, and a trained ethicist. Reach him at firstname.lastname@example.org.