Merchant v. Mayorkas: Fourth Amendment Rights in a Digitizing World
Since the September 11, 2001 terrorist attacks, global citizens have walked into airports or border crossings fully aware that they will encounter America’s national security apparatus more than in almost any other aspect of daily life. Indeed, airports are a window into the almost surreal size, scope, and power of America’s national defense: that gargantuan portion of our budget, politics, and global image that we know and trust to be there but scarcely see. Along with the copious funding we give to governmental departments defending national security – such as the Department of Homeland Security – we also give it great liberty. Most problematically, we endow these departments with liberties which clash with the rights of individuals. For example, we allow the Transportation Security Authority (TSA) and Customs and Border Protection (CBP) – which are parts of the Department of Homeland Security – to search us in unprecedentedly intrusive ways. Some of these concessions are reasonable for high-risk movements like flights and border crossings. This author personally feels O.K. taking his coat off and walking through a metal detector so that the proper authorities and fellow travelers know that he does not have any dangerous weapons on his person. However, he maintains that there is a problem with some searches: unreasonably intrusive inspections of the body, and the topic addressed in Merchant v. Mayorkas: technology searches.
The searches and seizures of technological devices are often excessively intrusive because they tend to cross the boundary between searching what is on one’s person to searching everything that is about a person. These sometimes months-long searches and seizures of personal information on devices inconvenience and intrude upon civilians [1]. Merchant v. Mayorkas questioned whether these searches violate the Fourth Amendment’s protection against “unreasonable searches and seizures.” Though plaintiffs, led by Harvard graduate Zainab Merchant, had their writ of certiorari to the U.S. Supreme Court denied, the Court should take up another similar case in order to protect technology searches from Fourth Amendment violations. Unreasonable searches and seizures of electronic devices cannot be justified by the putative existence of particular national security concerns.
Fundamentally, searches and seizures of technology should be evaluated separately from the standard searches done by TSA and CBP because these technological searches are significantly more intrusive. There are two steps to illustrating this critical point: first, defining what “standard searches of belongings” are and how they differ from technological searches; and second, establishing how this difference is sufficient to deem technological searches a violation of the Fourth Amendment.
The key distinction between searches of technology and “standard searches” is that the former are not “searches limited by ‘physical realities’— namely, that travelers can only carry so many pieces of luggage or only pack so many items” [2]. Therefore, searching a traveller’s technology is searching far beyond what the traveller chose to travel with; it is searching all aspects of that traveller’s life.
This critical distinction -- the idea that technological apparatuses hold comprehensive databases of one’s personal information -- is the reason why the Fourth Amendment especially protects technology from warrantless searches. The Founders who wrote the Fourth Amendment were concerned specifically with searches of one’s “homes, papers, and effects.” The private, personal, and critical documentation stored on devices is exactly the type of information that the Founders believed the state should not have free reign to investigate. Our personal devices should be considered “modern-day versions of ‘papers and effects’” protected by the Fourth Amendment.
By failing to take up Merchant and ruling with plaintiffs, the Court missed a key opportunity to illustrate that technology is protected from warrantless searches just like its physical parallels – papers and homes – would be. This is not an old idea. In fact, the Court’s precedent recognizes that technological data is extensive and must be protected from unreasonable searches or seizures. A key example is the landmark case, Carpenter v. United States (2018), which questioned warrantless cell phone tracking by authorities. In Carpenter, the Court held that “government access to such detailed location data provides a method of ‘near-perfect surveillance,’ and recognized that the Fourth Amendment must protect such sensitive information. It added that old-world legal rules don’t automatically apply in the digital age” [3]. Within a cell phone, authorities would be able to find location data and much more. It follows naturally that the technology described in Merchant should be protected from warrantless intrusion as well.
Merchant and fellow plaintiffs also had valid ground in stating that the searches and seizures in question were wholly unreasonable and excessive. According to the DHS policy in question that allows for these searches, “Agents may even confiscate the devices and hold them for months without a warrant or probable cause” [4]. Considering the integration of technology into an average traveller’s life, it is clear that confiscating technology for so long without any probable cause whatsoever is excessive. After all, this technology holds personal information and data which is critical to our daily lives and functions. Searching this technology, without probable cause, is an unjustified example of governmental prying and overreach.
There is one primary counterargument to the Supreme Court ruling in favor of Merchant and plaintiffs, which is the same argument that led the First U.S. Circuit Court of Appeals to reverse the District Court’s ruling in favor of the plaintiffs: national security. It was claimed and upheld that DHS should have the right to practice these technological searches and seizures because these devices hold critical data that can be used to protect national security. Specifically, restrictive policies would “hamstring the agencies' efforts to prevent border-related crime and protect this country from national security threats.”1 This is problematic logic for two reasons. First, the argument made was inherently short-term. The Court’s ruling was tainted with recency bias, demonstrated by the claim that the DHS needed all tools at its disposal because border crossings were at its “‘zenith.’”1 More importantly, there is a difference between giving authorities all information that is useful and giving them all information that is reasonable. Though device data would be useful, it is not reasonable to deprive users of their ownership of that device and data to supply the government intelligence without a clear purpose.
The point is made even more succinctly in Riley v. California (2014), which holds “that the warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data.” Just as digital data is not an immediate threat to officers, digital data is not an immediate threat at border crossings. It is separate from, and thus should be treated differently than, a weapon that would be directly on one’s person.
The unique position of modern technology is well summarized in the Brennan Center’s amicus brief which points out the “ubiquity of electronic devices in travel, the increasing capabilities of electronic devices, and the amount of aggregated information available on a traveler’s electronic device.” [5] Fundamentally, giving the government the freedom to arbitrarily commandeer devices that harbor so much of our identity is too large of a concession for infinitesimally small intelligence for national security purposes.
Simply put, Merchant and plaintiffs should have won this case. Months-long and unwarranted searches and seizures of personal devices go beyond the scope of necessary national security precautions. For that reason, these searches and seizures violate the Fourth Amendment. Although the Supreme Court denied the plaintiffs’ writ of certiorari, it is in the interest of the Court to take up the issue soon because this issue is going to be raised again repeatedly with the onward march of time. Alarmingly, “CBP officers conducted more than 30,000 electronic device searches in fiscal year 2018, over three times the number from fiscal year 2015 (8,503)” [6]. It is time for technological issues to be recognized for their importance. It is time to protect digital personal rights as much as physical ones. It is time to reevaluate Merchant v. Mayorkas.
References
[1] “Merchant v. Mayorkas (Formerly Alasaad v. Nielsen and Alasaad v. Wolf) | Brennan Center for Justice,” Brennan Center for Justice, February 5, 2018, https://www.brennancenter.org/our-work/court-cases/merchant-v-mayorkas-formerly-alasaad-v-nielsen-and-alasaad-v-wolf.
[2] Sen R, PAUL, and Sen Chris Coons, “The Founding Fathers Would Have Protected Your Smartphone,” POLITICO Magazine, accessed October 7, 2021, https://www.politico.com/magazine/story/2014/05/a-tech-challenge-for-fourth-amendment-application-107129.
[3] Nathan Wessler, “The Supreme Court’s Most Consequential Ruling for Privacy in the Digital Age, One Year In,” American Civil Liberties Union, June 28, 2019, https://www.aclu.org/blog/privacy-technology/location-tracking/supreme-courts-most-consequential-ruling-privacy-digital.
[4] “Merchant v. Mayorkas,” Constitutional Accountability Center (blog), June 28, 2021, https://www.theusconstitution.org/litigation/merchant-v-mayorkas/.
[5] Riley v. California. (n.d.). Oyez. Retrieved October 7, 2021, from https://www.oyez.org/cases/2013/13-132
[6] “Merchant v. Mayorkas,” American Civil Liberties Union, accessed October 7, 2021, https://www.aclu.org/cases/merchant-v-mayorkas.