Policing the Digital Border?

Social-media has expanded rapidly over the past decade and now a truly world-wide network of correspondences and commercial transactions occur over the internet. Regular communications now occur between everyday people on opposite sides of international borders. Along with legitimate business transactions and innocent correspondences, the internet has become a chosen method of criminal and terrorist organizations. What is the most far reaching technique that law enforcement could use to combat international crime in the internet age? By looking at the law of border searches an easy line can be drawn to law enforcement legal authority to intercept, without suspicion, emails sent from overseas into the United States.

Computers are, more and more, the most used repository of personal and business information. They, like the older forms of storing personal information, file cabinets and lock boxes, enjoy strong Fourth Amendment protections. However, just as anything else, the information stored in a computer is subject to far less protection when crossing the border. Suspicion-less searches at the border are routine. In United States v. Flores-Montano, the Supreme Court went as far as to say that a border search required no reasonable suspicion to disassemble the gas-tank of a vehicle. A recent trend among the various Federal circuits has extended the degree of intrusiveness of warrantless searches to suspicion-less searches of any digital equipment physically carried across the border, i.e. computers, hard drives, flash drives, digital cameras, and cell phones. The courts have said these intrusive searches are “routine” as well.  

However, sending an e-mail, text, or other form of electronic messaging is not the same as physically carrying digital data across a border. It more closely resembles sending mail or packages across the border. The Supreme Court in United States v. Ramsey expressly stated that the mode of transporting a document across the border was not relevant. The Court said “no different constitutional standard should apply simply because the [items searched] were mailed not carried.” In the above case, custom officials opened and searched envelopes they believed carried narcotics. The custom officials were subject to a statute which prohibited the search of letters without reasonable suspicion. When the case reached the Supreme Court, the issue was whether or not the Fourth Amendment, or interestingly the First Amendment, required a stricter standard. Not only did the Court say no, but they strongly indicated that no suspicion was required by the Fourth Amendment before the custom officials could open the envelopes.

Though the Supreme Court has not yet taken up the issue, searches of digital files physically carried across the border require no suspicion. The Supreme Court has said that mode that the object takes to cross the border is not relevant. So shy a direct statement from a court are there any impediments to police from intercepting e-mails sent internationally? Courts have considered the potential First Amendment violations that could occur by seizing expressive materials at the border and have dismissed these concerns because the government interest at the border still outweighs the First Amendment concerns. One, and a large, point of pause is the statute that underlies customs searched. Most border search cases fall with the purview of 19 U.S.C. §482. The statute does not address electronic searches. However, the Supreme Court has pointed out that the mode of crossing the border is not important so an electronic crossing shouldn’t be dispositive of the issue so long as the border and customs concerns are present. Courts have seen these concerns to include, but are not limited to, intercepting narcotics, cargo subject to duties, plans for criminal and terrorist activity, evidence of criminal conduct, etc. E-mail correspondences could encompass many of these customs concerns.

The manner in which the internet affects our lives is profound. With the proliferation of even more amazing technologies such as 3-D printers just on the horizon, the internet will play and even bigger role in international trade and communication. The need for customs officials and law enforcement to police these internet interactions is no less than the need to police more traditional interactions. There appear to be no Constitutional limitations on the authority of government officials to intercept and monitor these interactions. Nonetheless, the authority is not dispositive. Congressional action on the matter is probably needed before a full scale effort is made to police in the international electronic border.

Ryan Hatley

Blogger, Criminal Law Brief