It’s called the border search exception to the Fourth Amendment, but it’s a misnomer. It’s not an exception at all, but rather a Constitution-free zone. When you come to the border of the United States of America to seek entry, you are here but not here. You may have gotten off the plane at an airport, stood in line to speak with one of the pleasant people in a bullet-proof booth, but until you pass through the gate, you aren’t “technically” in America.
A legal fiction, obviously, since your feet are touching American terrazzo, but a fiction that no one has really struggled to understand. Our border guards have to be somewhere when they do their job, and given the existence of air travel, airports seem a pretty fair place.
The reasons behind the controls at the border, the limits for this Constitution-free zone, are deeply embedded in the law. We control customs duties, the introduction of things we don’t want brought into the country, like dangerously invasive plant species, and people who are neither entitled to enter nor deemed undesirable. You may not like the idea, but that’s what it is.
To accomplish these things, everyone going through this Constitution-free zone is subject to question and inspection. So far, this is fairly uncontroversial, even if the current shrieking over the Trump EO immigration ban has confused the deeply empathetic by conflating amorphous notions of human dignity with non-existent constitutional rights.
But this Constitution-free zone was a rubric with a rationale. As so often happens in law, we remember the former and forget the latter. As Mike Masnick explains at Techdirt, it’s happening again.
There’s now a case in the 4th Circuit that shows how this is expanding even further, and on Monday we joined with the Cause of Action Institute and the Committee for Justice to file an amicus brief in the case of Hamza Kolsuz (the ACLU has also filed an amicus brief). Kolsuz had his phone searched under a “border search exception” — but here’s the thing: He was in the process of leaving the country, not entering it. A regular bag search turned up handgun parts in his checked luggage, for which he was arrested. After that, his iPhone was seized and searched without a warrant. Remember, just a few years ago, the Supreme Court ruled that you need a warrant to search a mobile phone in the Riley case. But here there was none.
There is simply no rationale that would justify a search on the way out of the country. The existence of this Constitution-free zone is to protect against unwarranted entry. We’re not the Hotel California.
Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception.
The cases raises two independent issues, which are both fundamental. First is the rote application of the border search exception, as if it doesn’t exist for a reason and is merely a spot on American soil* where their rights magically go poof and disappear. The problem is that it’s a legal fiction to begin with, and without the justification for the fiction, it’s just your everyday inexplicable denial of constitutional rights.
The other issue is the search of a cellphone, which (as Mike notes) was prohibited by Riley in the absence of a warrant. Without reliance on the claim of a Constitution-free zone, the cellphone search issue would be easy: they can’t do it. But that’s why the government fell back on the border search argument.
And the court bought it. Picture a sleepy judge, doodling on his yPad, whose ears perk up at the mention of “airport” and “border.” Oh wait, it was a border search? Well then, suppression denied, as the gavel hits the bench.
Then there is the argument, raised by the ACLU in its amicus brief, that even if this Constitution-free zone isn’t merely a legal fiction, a rubric for which the rationale has long since been discarded, such that the mere presence in an airport, whether on the way in or out, is good enough to shed a person of all constitutional rights, there is still no justification for the warrantless search and seizure of a cellphone as it falls well beyond any border search justification and, as Riley held, exposes the individual’s entire life to government scrutiny at the whim of a government agent.
What this is really all about is the usurpation of a rule of law that exists to serve a legitimate function for the purpose of conducting criminal investigations that would, otherwise, be flagrantly unconstitutional. It’s just a game, a lie, by the government to do what it would be otherwise prohibited from doing by taking advantage of a rubric that exists for one purpose and applying it to something entirely unrelated.
[T]he United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of “every piece of mail… every picture… [and] every book” a person has…. These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence.
Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview.
That it’s necessary to argue the obvious limits of the exception to Judge T.S. Ellis III, who fell back on “well-settled” and “routine”** law to deny suppression, reflects how routinely the rubric of rules overcomes the rationale for the deprivation of constitutional rights.
Of course, many of us still find the very idea of a “border search exception” to be nonsensical in the first place. But if it’s there, the idea that it could be abused in this manner is even more problematic and concerning.
That law enforcement abuses it is, without a doubt, “problematic and concerning.” That the deprivation of constitutional rights has become so routine that courts gloss over them based on a rubric, however, reveals a deeper cynicism, that the Constitution is merely a technical impediment to be circumvented by whatever means are available in the zeal to catch the bad hombres.
*There is a collateral issue here relating to the government’s creation of a 100-mile “Constitution-free zone” from the border. which makes complete sense from a governmental interest perspective, but only if it’s brutally limited by the rationale for its existence. Unsurprisingly, it’s not. For those found within this 100-mile border zone, American citizens who live there, work there, exist there, for whom no rationale beyond government convenience exists to impair their right to be left alone, it’s absurd.
**Ironically, in deciding what distinguished a “routine” from a “non-routine” search, Judge Ellis looked to the physical attributes of the search, such as the authority to dissasemble a car (yes, they can tear apart your Ferrari because they feel like taking a look in the gas tank). What he did not consider was whether the purpose bore any relation to the justification for a “routine” border search.