Computers, Privacy & the Constitution

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RebeccaBonnevieFirstPaper 8 - 12 May 2018 - Main.RebeccaBonnevie
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There is no Spook/Cop distinction at the Border

-- By RebeccaBonnevie – 25 Apr 2018
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Blurred lines: Spook/Cop functions and the Border Search

-- By RebeccaBonnevie – rewrite May 12, 2018
 
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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.
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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.
 
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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.
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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).

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)


 
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The history of the border search doctrine

The 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.(4) 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.(5)

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 (6) 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 (7), 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.

Notes

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


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United States v. Montoya de Hernandez (8), 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

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Electronic 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. (9). 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(10) – 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.

Notes

9 : 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

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


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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. (11). 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(12) – 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

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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. 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.
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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.
 
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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?

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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 (13) and Riley v. California (14) 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 Future

It 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.

Notes

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

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


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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 (15) and Riley v. California (16)) and in doing so have arguably opened the door to a different way of analyzing of electronic data.
 
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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.
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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 (17)) indicate that electronic device searches are, categorically, more intrusive than searches of one's person or effects.(18) 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".(19)

Notes

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

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

19 : 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


 
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Final Word

 
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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.
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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.
 
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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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Disclosure:

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

RebeccaBonnevieFirstPaper 7 - 10 May 2018 - Main.EbenMoglen
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META TOPICPARENT name="FirstPaper"

There is no Spook/Cop distinction at the Border

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 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.
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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 doctrine

The 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.(20) 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.(21)
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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.
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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.

 


RebeccaBonnevieFirstPaper 6 - 26 Apr 2018 - Main.RebeccaBonnevie
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There is no Spook/Cop distinction at the Border

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The history of the border search doctrine

The 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.(22) 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.(23)
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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 (24) 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 (25), 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.
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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 (26) 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 (27), 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 collection

Changed:
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Electronic 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. (28). 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(29) – to a spook function of accessing, analysing 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 shaing” with elements of the federal government responsible for analyzing terrorist threat information.
>
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Electronic 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. (30). 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(31) – 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 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. 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.

RebeccaBonnevieFirstPaper 5 - 26 Apr 2018 - Main.RebeccaBonnevie
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META TOPICPARENT name="FirstPaper"

There is no Spook/Cop distinction at the Border

-- By RebeccaBonnevie – 25 Apr 2018
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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.
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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.
 

The history of the border search doctrine

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The 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.(32) 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.(33)
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The 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.(34) 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.(35)
 
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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 (36) 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 (37), 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.
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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 (38) 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 (39), 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 collection

Changed:
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Electronic 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. (40). 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].
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Electronic 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. (41). 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(42) – to a spook function of accessing, analysing 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 shaing” with elements of the federal government responsible for analyzing terrorist threat information.
 

Effects on the other civil liberties

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It 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.
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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. 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.
 
Added:
>
>
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?

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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.
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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_(43) and _Riley v. California_(44) 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.
 
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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.
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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 Future

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It 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.
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It 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.
 

RebeccaBonnevieFirstPaper 4 - 26 Apr 2018 - Main.RebeccaBonnevie
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There is no Spook/Cop distinction at the Border

-- By RebeccaBonnevie – 25 Apr 2018
 
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It is Time to Make the “Crazy Quilt” of the Fourth Amendment

-- By RebeccaBonnevie - 16 Apr 2018
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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.
 
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In Smith v. Maryland Justice Blackmun said the Court was not inclined to make a “crazy quilt” of the Fourth Amendment. I submit it is time to make the quilt. If we agree that privacy is something that society should value the third party doctrine needs to be amended to reflect the number of private corporations we interact with.
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The history of the border search doctrine

The 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.(45) 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.(46)
 
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The Third Party Doctrine

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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 (47) 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 (48), 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.
 
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The third party doctrine says a person has no reasonable expectation of privacy in data they have turned over to a third party. This means if information has been passed to a third party the Fourth Amendment protections do not apply and a warrant is not required to access the data. Smith v. Maryland is the judicial expression of third party doctrine. Applying the Katz privacy test the Supreme Court found that the Smith knew that the phone company was collecting numbers that were being connected to the home and therefore there is no expectation of privacy in this information. In his dissent Justice Marshal rejected the idea that privacy is binary, that once a secret has been told to one person it is told to the world. He says that even assuming the individuals know the company monitors the calls dialed for internal reasons does not follow that they expect this information to be made available to the public in general or government in particular. He also clashed with the majority idea that information had been voluntarily given up to a third party. He says that the decision is only voluntary if you have a choice and that it is incorrect to talk about assuming risks in contexts where there is no realistic alternative.
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Shifting from evidence collection to information collection

Electronic 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. (49). 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].
 
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Why the third party doctrine no longer works in 2018: changing societal norms

Today’s citizen puts a remarkable quantity/quality of details into the hands of private companies. The Government can aggregate discrete pieces of information from different companies to make a bigger picture. Some of the information companies hold about you isn’t even considered your information. “Shadow profiles” held by Facebook contain information about you uploaded by third parties and as such are not considered information owned by you.
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Effects on the other civil liberties

It 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.
 
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Giving up data is no longer a voluntary act (to a certain extent)

The third party doctrine was limited in in an analog world. Giving information to a third party involved a positive act – either appearing in public or voluntarily speaking information to the third party. Thoughts and reading materials were kept in private unless volunteered. Today is the inverse, keeping data private requires the positive acts. If one operates in a "default" world everything is tracked and logged. Mobile phones connect to cell towers giving to third parties your approximate location, our presence in public is recorded by cameras, and (in the general public's default world) one's movements on the internet, shopping habits, and reading materials are all logged. There is no realistic alternative to avoid some of these collections.
>
>

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.
 
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Counteracting the time machine effect: can we force it to forget?

In her U.S. v. Jones concurrence Justice Sotomayor observed the time machine effect: the government could store records and effectively mine them for information years into the future. The third party doctrine, she said, is ill suited to the digital age. Once data has been handed over there are very few situations where it can be retrieved.
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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.
 
Changed:
<
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In Google Spain v. Costeja the European Court of Justice upheld a person’s “right to be forgotten”. This is actually limited in application as it removes the data from being revealed in a Google search rather than deleting it.

In the US the right to be forgotten comes into conflict with the First Amendment – the right to be forgotten is seen as a form of censorship. An exception to this is California’s “online eraser” statute enacted in 2015. Minors can request their posts be deleted but this has some major limitations – the information might be hidden from the public but remain on a server, and the platform is not required to remove something posted by a third party about the minor including where a third party reposted the minor’s post. The most effective way to remove information from the internet is actually to copyright it and request it to be taken down. Recently a woman was forced to copyright her naked body to obtain control of an explicit video in a revenge porn case.

Will the third party doctrine change?

The Supreme Court is currently considering Carpenter v. US which concerns a warrantless search of cellphone location data justified in part by the third party doctrine. This case and the recent Cambridge Analytica saga have highlighted for the public how much data they give to third parties – voluntarily or involuntarily.

I submit the circumstances are right for the Court to redefine the third party doctrine. In her concurrence in Jones Justice Sotomayor says “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” I submit it is necessary and it is the Supreme Court’s opportunity to do so in the judgment on Carpenter. Reframing the third party doctrine would be a bold and dramatic move, but leaving this to Congress appears to be an acceptance of the status quo. Oral arguments in that case revealed little by way of legal doctrines. It seems that a majority of justices would be prepared to rule that the Fourth Amendment does not allow for the warrantless search and seizure of historical cell phone data, but the theories that justify the conclusion may vary.

An interesting question remains, if Carpenter results in a change to the third party doctrine, will there be a response by the political branches?

>
>

The Future

It 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.
 

RebeccaBonnevieFirstPaper 3 - 25 Apr 2018 - Main.RebeccaBonnevie
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META TOPICPARENT name="FirstPaper"
Line: 25 to 25
 In Google Spain v. Costeja the European Court of Justice upheld a person’s “right to be forgotten”. This is actually limited in application as it removes the data from being revealed in a Google search rather than deleting it.

In the US the right to be forgotten comes into conflict with the First Amendment – the right to be forgotten is seen as a form of censorship. An exception to this is California’s “online eraser” statute enacted in 2015. Minors can request their posts be deleted but this has some major limitations – the information might be hidden from the public but remain on a server, and the platform is not required to remove something posted by a third party about the minor including where a third party reposted the minor’s post.

Changed:
<
<
The most effective way to remove information from the internet is actually to copyright it and request it to be taken down. Recently a [[http://www.bbc.com/news/technology-43581619 ][woman was forced to copyright her naked body] to obtain control of an explicit video in a revenge porn case.
>
>
The most effective way to remove information from the internet is actually to copyright it and request it to be taken down. Recently a woman was forced to copyright her naked body to obtain control of an explicit video in a revenge porn case.
 

Will the third party doctrine change?

The Supreme Court is currently considering Carpenter v. US which concerns a warrantless search of cellphone location data justified in part by the third party doctrine. This case and the recent Cambridge Analytica saga have highlighted for the public how much data they give to third parties – voluntarily or involuntarily.

RebeccaBonnevieFirstPaper 2 - 16 Apr 2018 - Main.RebeccaBonnevie
Line: 1 to 1
 
META TOPICPARENT name="FirstPaper"
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 In his dissent Justice Marshal rejected the idea that privacy is binary, that once a secret has been told to one person it is told to the world. He says that even assuming the individuals know the company monitors the calls dialed for internal reasons does not follow that they expect this information to be made available to the public in general or government in particular. He also clashed with the majority idea that information had been voluntarily given up to a third party. He says that the decision is only voluntary if you have a choice and that it is incorrect to talk about assuming risks in contexts where there is no realistic alternative.

Why the third party doctrine no longer works in 2018: changing societal norms

Changed:
<
<
Today’s citizen puts a remarkable quantity/quality of details into the hands of private companies. The Government can aggregate discrete pieces of information from different companies to make a bigger picture. Some of the information companies hold about you isn’t even considered your information. [[[https://nakedsecurity.sophos.com/2018/04/13/facebook-shines-a-little-light-on-shadow-profiles/] ][“Shadow profiles”]] held by Facebook contain information about you uploaded by third parties.
>
>
Today’s citizen puts a remarkable quantity/quality of details into the hands of private companies. The Government can aggregate discrete pieces of information from different companies to make a bigger picture. Some of the information companies hold about you isn’t even considered your information. “Shadow profiles” held by Facebook contain information about you uploaded by third parties and as such are not considered information owned by you.
 

Giving up data is no longer a voluntary act (to a certain extent)

The third party doctrine was limited in in an analog world. Giving information to a third party involved a positive act – either appearing in public or voluntarily speaking information to the third party. Thoughts and reading materials were kept in private unless volunteered. Today is the inverse, keeping data private requires the positive acts. If one operates in a "default" world everything is tracked and logged. Mobile phones connect to cell towers giving to third parties your approximate location, our presence in public is recorded by cameras, and (in the general public's default world) one's movements on the internet, shopping habits, and reading materials are all logged. There is no realistic alternative to avoid some of these collections.
Line: 24 to 24
 In Google Spain v. Costeja the European Court of Justice upheld a person’s “right to be forgotten”. This is actually limited in application as it removes the data from being revealed in a Google search rather than deleting it.
Changed:
<
<
In the US the right to be forgotten comes into conflict with the First Amendment – the right to be forgotten is seen as a form of censorship. An exception to this is [[https://www.dataprotectionreport.com/2015/01/california-enacts-right-to-be-forgotten-for-minors/ ][California’s “online eraser” statute] enacted in 2015. Minors can request their posts be deleted but this has some major limitations – the information might be hidden from the public but remain on a server, and the platform is not required to remove something posted by a third party about the minor including where a third party reposted the minor’s post.
>
>
In the US the right to be forgotten comes into conflict with the First Amendment – the right to be forgotten is seen as a form of censorship. An exception to this is California’s “online eraser” statute enacted in 2015. Minors can request their posts be deleted but this has some major limitations – the information might be hidden from the public but remain on a server, and the platform is not required to remove something posted by a third party about the minor including where a third party reposted the minor’s post.
 The most effective way to remove information from the internet is actually to copyright it and request it to be taken down. Recently a [[http://www.bbc.com/news/technology-43581619 ][woman was forced to copyright her naked body] to obtain control of an explicit video in a revenge porn case.

Will the third party doctrine change?


RebeccaBonnevieFirstPaper 1 - 16 Apr 2018 - Main.RebeccaBonnevie
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Added:
>
>
META TOPICPARENT name="FirstPaper"

It is Time to Make the “Crazy Quilt” of the Fourth Amendment

-- By RebeccaBonnevie - 16 Apr 2018

In Smith v. Maryland Justice Blackmun said the Court was not inclined to make a “crazy quilt” of the Fourth Amendment. I submit it is time to make the quilt. If we agree that privacy is something that society should value the third party doctrine needs to be amended to reflect the number of private corporations we interact with.

The Third Party Doctrine

The third party doctrine says a person has no reasonable expectation of privacy in data they have turned over to a third party. This means if information has been passed to a third party the Fourth Amendment protections do not apply and a warrant is not required to access the data. Smith v. Maryland is the judicial expression of third party doctrine. Applying the Katz privacy test the Supreme Court found that the Smith knew that the phone company was collecting numbers that were being connected to the home and therefore there is no expectation of privacy in this information. In his dissent Justice Marshal rejected the idea that privacy is binary, that once a secret has been told to one person it is told to the world. He says that even assuming the individuals know the company monitors the calls dialed for internal reasons does not follow that they expect this information to be made available to the public in general or government in particular. He also clashed with the majority idea that information had been voluntarily given up to a third party. He says that the decision is only voluntary if you have a choice and that it is incorrect to talk about assuming risks in contexts where there is no realistic alternative.

Why the third party doctrine no longer works in 2018: changing societal norms

Today’s citizen puts a remarkable quantity/quality of details into the hands of private companies. The Government can aggregate discrete pieces of information from different companies to make a bigger picture. Some of the information companies hold about you isn’t even considered your information. [[[https://nakedsecurity.sophos.com/2018/04/13/facebook-shines-a-little-light-on-shadow-profiles/] ][“Shadow profiles”]] held by Facebook contain information about you uploaded by third parties.

Giving up data is no longer a voluntary act (to a certain extent)

The third party doctrine was limited in in an analog world. Giving information to a third party involved a positive act – either appearing in public or voluntarily speaking information to the third party. Thoughts and reading materials were kept in private unless volunteered. Today is the inverse, keeping data private requires the positive acts. If one operates in a "default" world everything is tracked and logged. Mobile phones connect to cell towers giving to third parties your approximate location, our presence in public is recorded by cameras, and (in the general public's default world) one's movements on the internet, shopping habits, and reading materials are all logged. There is no realistic alternative to avoid some of these collections.

Counteracting the time machine effect: can we force it to forget?

In her U.S. v. Jones concurrence Justice Sotomayor observed the time machine effect: the government could store records and effectively mine them for information years into the future. The third party doctrine, she said, is ill suited to the digital age. Once data has been handed over there are very few situations where it can be retrieved.

In Google Spain v. Costeja the European Court of Justice upheld a person’s “right to be forgotten”. This is actually limited in application as it removes the data from being revealed in a Google search rather than deleting it.

In the US the right to be forgotten comes into conflict with the First Amendment – the right to be forgotten is seen as a form of censorship. An exception to this is [[https://www.dataprotectionreport.com/2015/01/california-enacts-right-to-be-forgotten-for-minors/ ][California’s “online eraser” statute] enacted in 2015. Minors can request their posts be deleted but this has some major limitations – the information might be hidden from the public but remain on a server, and the platform is not required to remove something posted by a third party about the minor including where a third party reposted the minor’s post. The most effective way to remove information from the internet is actually to copyright it and request it to be taken down. Recently a [[http://www.bbc.com/news/technology-43581619 ][woman was forced to copyright her naked body] to obtain control of an explicit video in a revenge porn case.

Will the third party doctrine change?

The Supreme Court is currently considering Carpenter v. US which concerns a warrantless search of cellphone location data justified in part by the third party doctrine. This case and the recent Cambridge Analytica saga have highlighted for the public how much data they give to third parties – voluntarily or involuntarily.

I submit the circumstances are right for the Court to redefine the third party doctrine. In her concurrence in Jones Justice Sotomayor says “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” I submit it is necessary and it is the Supreme Court’s opportunity to do so in the judgment on Carpenter. Reframing the third party doctrine would be a bold and dramatic move, but leaving this to Congress appears to be an acceptance of the status quo. Oral arguments in that case revealed little by way of legal doctrines. It seems that a majority of justices would be prepared to rule that the Fourth Amendment does not allow for the warrantless search and seizure of historical cell phone data, but the theories that justify the conclusion may vary.

An interesting question remains, if Carpenter results in a change to the third party doctrine, will there be a response by the political branches?



Revision 8r8 - 12 May 2018 - 04:56:27 - RebeccaBonnevie
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