We all know the feeling of going through customs, and having some random blue gloved official rummaging through a few weeks of dirty laundry.
The U.S. government has long tried to apply their legal authority to search luggage at the border to search things like the contents of laptop computers, hard drives, iPhones, iPads, or other electronic devices.
And not just to search them – to copy them and retain those copies for any purpose whatsoever. Without probable cause. Without a warrant. Without even “reasonable suspicion.” For any reason or no reason at all.
The rationale? Well, you have little or no expectation of privacy when you cross the border.
Now the government is applying this same rationale to when your DATA or CONVERSATIONS cross the border.
Essentially, the government asserts that when you exchange e-mail with someone outside the United States, have a phone call with them, or just about anything else, the packets or data that travels across the border can be searched without a warrant and without probable cause because, well you have little or no expectation of privacy when your data travels across the border.
The government officially noted that, “the privacy rights of U.S. persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.”
The government starts with the so-called “invited ear” exception. Essentially, when you give information to a third party (the invited ear) you assume the risk that that person will share it with someone. Or as Ben Franklin would say, “two people can keep a secret, provided one of them is dead.”
From there, the government concludes, (page 58) “Thus, once a non-U.S. person located outside the United States receives a communication, the sender loses any cognizable Fourth Amendment rights with respect to that communication. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the communication to others, leave the communication freely accessible to others, or that the U.S. government (or a foreign government) will obtain the communication.”’ page 47
Whoa. Easy there.
Assuming the risk that the person I entrust with a communication will turn it over is NOT EVEN CLOSE to the same as saying I have therefore no privacy expectation. When I tell my best friend something in confidence, I run the risk that he will tell his wife, and that she will tell someone, etc. But that doesn’t mean that the government can the collect that conversation without a warrant. Were that so, there’s no reason to limit it to international conversations.
The government goes on to note, under the rubric of the “border search” doctrine, courts have long recognized a diminished expectation of privacy in letters or packages that transit an international border… The same rationale applies also to international data transmissions, like the communications at issue here..”
While the government makes these assertions in the context of international terrorism cases, they apply with equal force and logic to non-terrorism cases. And they apply with equal logic whether the person with whom the communication is made is a US person or not.
And they apply with equal logic whether the parties know that their communications are travelling internationally. Under either the “assumption of risk” or “border search” doctrines, a man in Boston communicating with a woman in New Haven runs the risk that the New Haven woman will disclose their conversation, and therefore neither party has a “reasonable expectation of privacy” in the conversation, according to the government’s rationale. Thus, no warrant is necessary to intercept the communication. Both parties “assume the risk that the other will give the communication to others, leave the communication freely accessible, or that some government will obtain the communication.”
Since neither party has an expectation of privacy, the communication can be intercepted without a warrant.
See what I did there? I said that the government can search. Because the government can search, you have no expectation of privacy. And because you have no expectation of privacy, well.. the government can search.
See, reasoning, circular.
The reason the government can search without a warrant is because the communications actually travel across the border. Not that they are INTENDED to.
Note that many communications – even purely domestic ones – travel across international borders. So our Massachusetts friend communicating with his friend in Connecticut may see that message travel to Montreal or Marrakesh, depending on network conditions. When it crosses the border, just like your week old laundry, it is subject to search without warrant.
It doesn’t matter WHY it travelled across the border. The government could easily re-route traffic internationally just to take advantage of the border search doctrine, and probably does.
It’s a stunning interpretation of the law.
Because I run the risk that the recipient of a communication might turn it over to someone, I have no privacy expectation, and therefore no warrant is needed to intercept the communication. Wow.
It would be terrible if the court actually adopted this as the law of the land. It’s bad enough that the Justice Department asks them to.