As Nick Selby might remind me, it is certainly possible that a customs agent will search a smartphone or laptop and find plans for a terrorist bomb that will wreak devastating havoc. And it’s true. It’s possible. So goes the rationale for customs agents demanding passwords of people when they seek to enter the United States of America.
But what’s the authority for doing so?
Border agents say that this law requires people crossing border to disclose their password if asked. But does it say that? No cases. pic.twitter.com/2FeJdPTkZ6
— Orin Kerr (@OrinKerr) February 15, 2017
Orin raises a good, but only quasi-relevant, point. Section 507(a)(2) of Title 19 of the United States Code obviously doesn’t expressly authorize customs agents to demand passwords. On the other hand, it’s remarkably unclear what that subsection is supposed to mean. Writing law is hard, and this wasn’t Congress’ finest hour.
But it’s only quasi-relevant because a customs agent at the border is, for lack of a better word, god. If he says you don’t get in, you don’t get in. If he says jump, you ask how high. The only time the statutory authority matters is when you challenge a customs agent’s demand in court, and that only happens after the shit has hit the fan.
If you get in without a hitch, you wipe your brow for having dodged a bullet and go home. It’s only when something bad happens, they seize your computer, they nab you for kiddie porn, that you are put in the position of challenging the customs agent’s actions. People who make it through without more than the serious unpleasantness of a customs agent’s demand don’t dedicate their lives to litigating their transitory detention in federal court.
But what about those beloved advocacy groups who do this sort of thing for kicks? It’s been tried. It hasn’t played out very well.
Pascal Abidor’s computer spanned the gap between the sort of stuff that a government agent might think is a problem, and the privacy a guy believes is protected from inspection, and so he took on the role of plaintiff, along with two groups that could muster arguments that should have been sufficient to get a judge to declare where the lines should be drawn.
When the case was assigned to former Chief, now Senior, Eastern District of New York Judge Edward Korman, they must have thought they hit the jackpot. Not that Judge Korman would be easy, but that he had the guts to tell the government to get lost. That’s about the best one could hope for. But the opening of Judge Korman’s opinion in Abidor v. Napolitano killed any hope the plaintiffs might have had.
Since the founding of the republic, the federal government has held broad authority to conduct searches at the border to prevent the entry of dangerous people and goods. In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices, not on paper. This includes terrorist materials and despicable images of child pornography.
Michael Chertoff, Searches Are Legal, Essential, USA Today, July 16, 2008, at A10.
Nothing good ever starts with a quote by Michael Chertoff.
It only gets worse from there. The complaint in Abidor was that the search of a computer, a concept that couldn’t be further from the minds of the founding fathers, legislators or judges who established that no rights exist at the border, had nothing to do with any legitimate justification to search. And yet, there was no authority to prevent customs from demanding anything they wanted to demand, including a look at confidential information on computers.
This is enough to suggest that it would be foolish, if not irresponsible, for plaintiffs to store truly private or confidential information on electronic devices that are carried and used overseas.
In other words, if you don’t want customs checking out your digital junk, don’t have digital junk. And this is what came of a challenge in the Eastern District of New York. Consider the real life scenario that invariably eludes academics and those who think Supreme Court decisions are the coolest things ever.
There you are, a traveler at the gates of your nation, and blocking your path is this customs agent in a uniform telling you to . . . do as he tells you. What exactly do you plan to do about it at that moment? Will you scream about your rights? Is your purpose to inflame the situation, do everything humanly possible to assure you won’t be sleeping in your own bed that night?
As strongly as you may believe, rightly or wrongly, that it’s unconstitutional for that agent, who is unlikely to have attended Yale Law School, to demand to see what’s on your hard drive, are you really interested in testing his mettle? If you end up getting hauled away in cuffs, will anybody even know what happened to you? Are you that tempted to find out whether prison rape is really a thing?
An interesting reply to Orin’s twit was whether some customs agent could demand Mark Zuckerberg’s Facebook password, the master key to all the internet has to offer. Sure. Why not? He may be the ginchiest guy to you, but he’s just another person seeking to cross the border to the government.
But if they did, maybe that would change things, because he’s got the deep pockets to raise hell and the celebrity to make a million SJWs turn out to protest the horror of it all. Maybe that would be the motivation for Congress to address the huge gap in the law that allows every customs agent to invent his own reasons for demanding whatever strikes his fancy.
After all, nobody cared what happened to Pascal Abidor when this problem came up during the past administration. And if the answer is that it’s “foolish, if not irresponsible,” to travel with things that have passwords isn’t good enough for you, it’s a shame no one outside of a handful of law nerds gave a damn at the time.