It’s Time to Shore Up Fourth Amendment Protections at the Border

Since the Fourth Amendment passed in 1791, it has contained a “border search exception.” This exempts customs officials from its normal requirement of probable cause before they conduct “routine searches” of the person, papers or effects of someone crossing the border.

In the 1950s, federal regulations substantially extended this exception for the Customs and Border Police. There would now be a “border region” of the US, defined as being within 100 miles of the US border or of international waters around the coast, where CBP would be able to conduct “routine searches” without probable cause. The border region includes roughly two-thirds of US residents.

Searches have also substantially changed. The Constitution was not written with our current, highly digital world in mind, and in the 1790s, it wasn’t feasible for somebody to cross a border with a complete record of their life and movements in their pocket.

Up until 2014, the government asserted that it did not need a warrant to search the phones of people who had been arrested. In a landmark ruling in Riley v. California, the supreme court rejected this, and enshrined that law enforcement needs a warrant to search an electronic device even if the owner had been arrested. They reasoned that electronic devices, such as cellphones, contain such a vast amount of personal information that law enforcement must get a warrant to search them. The court wrote:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

But the Supreme Court did not address whether this general requirement also applies at the “border,” and because of that there is a circuit split about whether or not these protections actually do apply there. Academics, journalists and members of groups CBP disfavors, should not have to take elaborate precautions against CBP agents seizing devices teeming with sensitive data. Indeed, a fully originalist argument has been made that papers are categorically unseizable.

Instead of waiting on a conservative Supreme Court to rule in favor of Americans’ digital privacy, a group of bipartisan law makers, including Ron Wyden, Rand Paul, Ed Markey and Ted Lieu, have introduced legislation in both the House and Senate to clarify the law in regards to border searches of electronic devices. The Protecting Data at the Border Act would:

  • Require Border Patrol to get a warrant based on probable cause before they can conduct a search of a person’s digital devices
  • Prohibit Border Patrol agents from delaying (for more than 4 hours) or denying entry into the United States if someone refuses to hand over passwords or PINs to an electronic device
  • Require law enforcement get probable cause before seizing a device
  • Require written consent for border agents to search a digital device, or provide access or info for online accounts

We can’t wait for the Supreme Court to act. Please consider reaching out to your legislators and telling them to cosponsor the Protecting Data at the Border Act. You can call your legislators here!

Our Platform To Reduce Police Violence

The United States is in the middle of a pandemic of racist police violence that shows no sign of abating. For many police officers, expressing verbal opposition to a police killing, police tactic or police budget, is itself an act of unreasoning aggression no sane person could endorse. So it’s at protests against police violence that you see the most police violence; it’s the very expression of the idea that police should submit themselves to the rule of law, that arouses their lawless fury.

For decades, elected officials from both major parties have treated police and the military like a special class. Congressmembers, councilors, mayors and legislators have approved their budgets and acquisitions without question. Till this year, it has been almost politically unimaginable to treat their requests with the same skepticism afforded to other funding requests. Courts, too, have enshrined enormous deference to police and the military into law, through abusive concepts like “qualified immunity.” Drastic change is necessary to change the culture, not only of the police, but of our political system as a whole.

A restored Fourth Amendment requires that people, their communications and their effects be searched or seized only subject to probable cause of involvement in an actual crime. The actual practice of both police and federal agencies is to over-surveil, over-criminalize, over-seize and over-detain, and the law improperly allows them to escape accountability for these violations.

The Restore The Fourth board hereby endorses the following seven specific measures to reduce police violence:

  1. At the federal level, pass the tri-partisan Ending Qualified Immunity Act, so that people can once more sue the police for violating their rights. At the state level, implement changes like that recently approved in Colorado.
  2. Abolish federal civil asset forfeitures, which enable police to steal people’s cash, vehicles, and even homes with impunity, through passing the FAIR Act. At the state level, pass bills similar to the model legislation from the Institute for Justice.
  3. End no-knock warrants, which are a vector for police violence, at the federal level through passing the Justice for Breonna Taylor Act, and at the state and local level through prohibitions such as that passed in Louisville, KY.
  4. Reduce jail churn by reducing arrests: Police should refrain from arrests for misdemeanor quality-of-life crimes, “resisting arrest”, protest-related trespassing, and crimes associated with being homeless. Rather than setting cash bail, judges should implement pretrial detention only where there has been a finding of dangerousness after a hearing.
  5. Abolish DHS, making its constituent agencies independent again; it was a bad idea from the get-go. Among its constituent agencies, abolish ICE, and revert to a unitary agency for both documented and undocumented immigrants.
  6. Pass surveillance oversight ordinances and facial recognition bans at the local, county and state levels, to restrain the police from deploying surveillance without review and consent by local elected officials.
  7. In relation to coronavirus pandemic enforcement, we believe that governments should involve the police only secondarily and as a last resort, such as if someone assaults or murders a member of the public or public health worker trying to enforce a coronavirus-related restriction, or for education and handing out masks. Drones and robots should not be used for enforcement, and contact tracing apps should be used only under tight constraints.

We thank the volunteers of Restore The Fourth, Critical Resistance, the Cato Institute, and the protesters, activists and scholars engaged with Black Lives Matter, for inspiring us to identify and support these measures. If you’d like to help make this platform a reality, contact Restore The Fourth here.