What amendment to the U.S. Constitution is treated most cavalierly?
There’s an argument to be made that it’s the Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Debates have raged for years over what constitutes a search.
Analyzing your breath? Not a search. Your blood? A search. Your home when there’s a guest in it? Not a search. Sort of.
Inevitably, your smartphone is now at the center of the debate because federal agents are increasingly requiring you to turn it over for inspection. And a unanimous 2014 Supreme Court decision declaring a warrant is required for searching cellphones hasn’t settled the matter.
Earlier this month, for example, a NASA engineer was detained at the border when returning from vacation in Chile. He was required to reveal his phone’s PIN number so agents could have a stroll around his phone.
Not surprisingly, that’s earned the notice of Sen. Ron Wyden, D-OR, one of the few members of Congress still interested in protecting what’s left of our privacy.
In a letter to the Department of Homeland Security last week, Wyden asked Sec. John Kelly to reveal the extent to which the government is conducting warrantless searches of cellphones.
What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person disclose their social media or email account password?
How is CBP use of a traveler’s password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?
What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to encrypted data? How are such demands consistent with the Fifth Amendment?
How many times in each calendar year 2012-2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer password, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?
How many times in each calendar year 2012, 2013, 2014, 2015, and 2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?
In its editorial today, the Boston Globe notes these searches have been underway for years and continue to grow in scope. That’s how constitutional guarantees usually fall.
Everyone is concerned about terrorism and public safety, but this should never be misconstrued by the Trump administration as an invitation to circumvent the Fourth Amendment, which protects against unreasonable search and seizure. In a 2014 case hailed by digital privacy advocates for its potentially broader applications, the Supreme Court ruled that police must have a warrant before searching a suspect’s cellphone. Writing for the majority, Chief Justice John Roberts said that while technology permits people to carry in their pockets what he called “the privacies of life,” it does not mean such information is “any less worthy of the protection for which the Founders fought.”
That’s something this administration should keep in mind. Wyden’s proposal should be a slam-dunk — no one wants to be forced to reveal the contents of their cellphone or social media musings. Yet nothing is ever easy with a Congress that would rather obstruct than legislate. What’s at stake is our right to privacy and its constitutional protections. And that should never be a partisan issue.
Our lives are on these things: diaries, photo albums, appointment books, bank records, and verbatim conversations, as the Globe points out.
And it’s true, we’ve used the devices to willingly give away our privacy, but the choice was ours.
Still, it does make one wonder that as we give away privacy, whether the very concept of it become so abstract that there’s little stomach for protecting what’s left of it.