It sounds like a classic law school exam question. A border patrol agent in the United States, without adequate provocation or justification, fires a shot across the Mexican border, hitting an innocent Mexican teenager in the head – killing him.

Does the family of the deceased have any recourse in the U.S. courts, specifically under the Fourth and Fifth Amendments through the unjustified use of deadly physical force? That’s what the Supreme Court will decide after oral argument on February 21, in a case called Hernandez v. Mesa.

The holding will be significant because of its implications for cyberspace. If the US government can “shoot” foreigners overseas with impunity because the Fourth Amendment does not apply, then it can seize documents or records remotely from non U.S. servers (provided it isn’t infringing the privacy rights of U.S. citizens). It can also take down botnets, webpages, domains, and IP ranges without bothering to get a warrant because – well, ‘merica.

In Hernandez, the District Court and the Fifth Circuit found that, as a Mexican citizen with no voluntary contacts (other than the shooting itself) to the United States, the family had no recourse in the U.S. Courts, because the Fourth Amendment did not apply extraterritorially and that the U.S. agent had qualified immunity under the Fifth Amendment because the agent’s actions did not violate any “clearly established” law. Well, at least in the United States.

Who Are “The People?”

In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) the Supreme Court examined a search of the residence of a Mexican citizen’s Mexican home by U.S. DEA agents seeking evidence for use in a U.S. drug prosecution.

The Verdugo-Urquidez court found that the Fourth Amendment’s purpose and language created a “compact” or “agreement” theory of application – “the right of the people…” to be free from unreasonable searches and seizures implied that “the people” have some voluntary contact with the United States. Likening the Fourth Amendment language to that in the Preamble (“We the people”) and the First, (“the right of the people peaceably to assemble”), Second (“the right of the people to keep and bear Arms”) and Ninth Amendments (rights retained by “the people”), the court held that certain constitutional rights enured only to people who were sufficiently connected to the sovereign – citizens or residents (lawful or not).

“The people,” the court concluded in Verdugo-Urquidez, did not include foreign nationals outside the United States, and the restrictions of the Fourth Amendment were not designed to restrict the powers of U.S. law enforcement (particularly acting overseas), but rather to reinforce rights of the body politic.

Conversely, in Boumediene v. Bush, 553 U.S. 723 (2008), the Court held that the Constitutional provisions related to the President’s authority to suspend the writ of habeus corpus could apply to foreign nationals held under U.S. authority in Guantanamo Bay, Cuba.

The difference seems to be that the language related to suspending habeaus corpus is a restriction on the power of the President and applies anywhere the power of the President applies, but the rights protected under the Constitution to “the people” apply only to “the people” referenced in the compact.

Applying this somewhat narrow rationale, the Fifth Circuit found that the shooting victim was not part of the body politic of the United States, and therefore had no rights under the Fourth Amendment.

Botnet Takedowns?

The case has significant consequences for the application of U.S. constitutional protections to actions which impact persons overseas, particularly now that the Internet facilitates many cross-border actions. While federal agents typically obtain a warrant even for overseas electronic searches and seizures, depending on the outcome of this case, the Supreme Court may send a green light that such warrants are no longer necessary.

A “seizure” or a “search” is more than the physical removal of a person or an object. The Fifth Circuit had no problem classifying the shooting as a form of “seizure” of the teenager. With the expansion of the extraterritorial powers of the U.S. Courts under Rule 41, of the Federal Rules of Criminal Procedure, U.S. Courts may now order the seizure of foreign domains, web pages, electronic records, tools, and botnets.

They may also order evidentiary, investigatory, or prohibitory searches or seizures of files and records belonging to non-citizens overseas. If the court affirms and expands the holding that the Fourth Amendment does not apply to extraterritorial seizures to non citizens, then U.S. law enforcement may abandon the thin veneer of pretense afforded by Rule 41 itself, and simply take it on itself the authority to shut down, seize or search Internet sites around the world, without resort to any Fourth Amendment niceties.

Hackers, criminals, or people with evidence located overseas are not part of the U.S. body politic, and therefore not afforded the same rights and privileges of U.S. citizens and residents. Websites located outside the borders of the US are like the cement culvert that divides Juárez, Mexico, and El Paso, Texas where 15 year old Sergio Hernandez Guereca was playing when he was shot – essentially a U.S. free fire zone.

The outcome of the Hernandez case may even impact the current litigation in United States v. Microsoft, where the U.S. government is seeking a court order from a U.S. court to “seize” e-mails which Microsoft asserts are located in Ireland.

DOJ asserts that the targets of the investigation (and senders and recipients of the emails) are U.S. citizens in the U.S., and therefore, irrespective of where the emails are physically located, they should be able to obtain access under the Stored Communications Act. This differs from the ruling of another court which ordered Google to produce emails admittedly sent by U.S. persons to other U.S. persons (U.S. person is broader than mere citizens) within the U.S., portions of which may have been stored by Google in the cloud overseas.

If Microsoft is successful in arguing that the Stored Communications Act does not permit seizure of documents located overseas without a sufficient nexus to the U.S., well, the U.S. government may argue that the Fourth Amendment itself doesn’t apply to such foreign searches. The world becomes a legal no-man’s land.

The Hernandez Court could narrow its Fourth Amendment extraterritorial jurisprudence, or clarify the scope of its ruling in Verdugo-Urquidez, although that is unlikely. How it navigates this thicket may dictate how U.S. constitutional provisions are applied in the future, and how much power the U.S. government can assert overseas without a warrant. A decision should be forthcoming by late June.

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