July 13, 2018 1:19PM

Kavanaugh, Klayman, and the Fourth Amendment

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In the few days since President Trump nominated him to be an Associate Justice on the Supreme Court, Judge Brett Kavanaugh has seen his life put under the microscope. It turns out that the U.S Court of Appeals for the D.C Circuit judge really likes baseball, volunteers to help the homeless, and has strong connections to the Republican Party – especially the George W. Bush administration. More consequentially, Kavanaugh is an influential judge with solid conservative credentials. For libertarians, Kavanaugh's record includes much to applaud, especially when it comes to reining in the power of regulatory authorities. However, at least one of Kavanaugh's concurrences reveals arguments that should concern those who value civil liberties. Members of the Senate Committee on the Judiciary should press Kavanaugh on these arguments at his upcoming confirmation hearing.

In 2015, Kavanaugh wrote a solo concurrence in the denial of rehearing en banc in Klayman v. Obama (full opinion below), in which the plaintiffs challenged the constitutionality of the National Security Agency's (NSA) bulk telephony metadata program. According to Kavanaugh, this program was "entirely consistent" with the Fourth Amendment, which protects against unreasonable searches and seizures.

The opening of the concurrence is ordinary enough, with Kavanaugh mentioning that the NSA's program is consistent with the Third Party Doctrine. According to this doctrine, people don't have a reasonable expectation of privacy in information they volunteer to third parties, such as phone companies and banks. This allows law enforcement to access details about your communications and your credit card purchases without search warrants. My colleagues have been critical of the Third Party doctrine, filing an amicus brief taking aim at the doctrine in the recently decided Fourth Amendment case Carpenter v. United States

Because the Third Party Doctrine remains binding precedent, Kavanaugh argues, the government's collection of telephony metadata is not a Fourth Amendment search. Regardless of one’s opinion of the Third Party Doctrine, this is a reasonable interpretation of Supreme Court precedent from an appellate judge.

Yet in the next paragraph the concurrence takes an odd turn. Kavanaugh argues that even if the government's collection of millions of Americans' telephony metadata did constitute a search it would nonetheless not run afoul of the Fourth Amendment:

Even if the bulk collection of telephony metadata constitutes a search,[...] the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty. Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports. [...] The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.

This paragraph includes a few points worth unpacking: 1) That the collection of telephony metadata is permitted under the "Special Needs" Doctrine, and 2) The 9/11 Commission Report buttresses the claim that "The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States."

Kavanaugh asserts that the NSA's program serves a special need, and is therefore exempt from the Fourth Amendment's warrant requirement. The so-called Special Needs Doctrine usually applies when government officials are acting in a manner beyond what is associated with ordinary criminal law enforcement. Justice Blackmun explained the justification for the doctrine in his New Jersey v. T.L.O. (1985) concurrence:

Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers.

Kavanaugh's concurrence includes a few notable examples of the Special Needs Doctrine, such as drug tests for high school athletes and drunk driving roadblocks. Unlike Klayman, which concerned the indiscriminate bulk collection of millions of citizens' telephony metadata, these cases involved limited searches specific to an isolated government interest.

In United States v. United States District Court (1972) – the so-called "Keith Case" – the Supreme Court rejected the government's argument that "the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement."

The Supreme Court did not find this or some of the government's arguments persuasive:

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

Kavanaugh's argument that the NSA's domestic spying can override Fourth Amendment protections thanks to "special needs" is at odds with the Supreme Court's holding in the Keith Case. If the Court expanded special needs to cover the bulk collection of telephony metadata it would be the most expansive application of the doctrine to date.

It's important to consider why Kavanaugh believes "bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States."

In making this claim, Kavanaugh cited the 2004 9/11 Commission Report. This report does not directly recommend the bulk collection surveillance at issue in Klayman, nor does it make the argument that such a program would have prevented the 9/11 attacks.  

In fact, the Privacy and Civil Liberties Oversight Board's (PCLOB) 2014 report on the NSA's bulk telephony surveillance program, published before Kavanaugh's Klayman concurrence, found that the program was not a critically important part of the ongoing War on Terror:

Based on the information provided to the Board, we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. In that case, moreover, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program.

Even in those instances where telephone records collected under Section 215 offered additional information about the contacts of a known terrorism suspect, in nearly all cases the benefits provided have been minimal — generally limited to corroborating information that was obtained independently by the FBI.

Kavanaugh's assertion that the NSA's invasive surveillance program is justified on national security grounds is simply not supported by the 9/11 Commission Report or the PCLOB's report.

If the Senate does vote to confirm Kavanaugh, as is widely expected, he will likely be on the bench for decades. In that time, he will hear cases involving warrantless surveillance justified on national security grounds. This surveillance may involve facial recognition, drones, and other emerging surveillance methods. That a potential Supreme Court justice might view such warrantless surveillance as justified because of a national security-based "special needs" exception to the Fourth Amendment should worry everyone who values civil liberties. Members of the Senate Committee on the Judiciary must ask Kavanaugh to better explain his reasoning in Klayman.

Klayman v. Obama by Matthew Feeney on Scribd

July 2, 2018 10:45AM

Technological Progress Freed Children from Hard Labor

It’s summertime and across the United States, children are away from school. The custom of long breaks in the school year dates to when most Americans worked in agriculture and often needed their children’s help on the farm. Of course, most children simply didn’t attend school, instead helping with housework and grueling farm labor year-round. In 1820, for example, primary school enrollment in the United States was just over 40 percent. That percentage rapidly shot upward in the coming decades, reaching 100 percent by 1870. But even then, many children didn’t make it past elementary school. In 1870, U.S. mean years of schooling stood at just 4.28. That number has risen steadily ever since. What changed? Technology, for one thing.

In his book Enlightenment Now, Harvard University professor Steven Pinker recounts how technology helped get boys off the farm and into the classroom. He quotes a tractor advertisement from 1921:

“By investing in a Case Tractor and Ground Detour Plow and Harrow outfit now, your boy can get his schooling without interruption, and the Spring work will not suffer by his absence. Keep the boy in school—and let a Case Kerosene Tractor take his place in the field. You'll never regret either investment.”

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As more farms adopted efficiency-enhancing agricultural devices like kerosene tractors, more boys attended school instead of working the fields. For girls, the huge time savings brought on by labor-saving household devices played a similar role. As running water, electricity, washing machines, and other modern conveniences spread, time spent on housework plummeted. Pinker’s book also contains a telling chart documenting the change.

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Most of the work replaced by those technologies had traditionally fallen to mothers—and to their daughters. The time freed up by innovation enabled more girls to attend school.

Washing machines and tractors have accomplished more than just cleaning clothes and ploughing fields. They also freed America’s children to receive an education.

Today, there are still children kept from school by household labor requirements. The burden disproportionately falls on girls. According to the United Nations, data from 42 countries show that rural girls are more likely to be out of school than rural boys. In rural Sub-Saharan Africa, the U.N. data also shows that girls often spend more time gathering wood and water than boys—time that could be spent in a classroom instead.

Fortunately, access to running water and electricity is rapidly spreading across the globe. As more households gain access to modern technologies, more children will leave behind backbreaking physical labor for school books and studying.

June 25, 2018 12:44PM

Surveillance Tech Still a Concern After Carpenter

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Last week the Supreme Court issued its ruling in Carpenter v. United States, with a five-member majority holding that the government's collection of at least seven days-worth of cell site location information (CSLI) is a Fourth Amendment search. The American Civil Liberties Union's Nathan Wessler and the rest of Carpenter's team deserve congratulations; the ruling is a win for privacy advocates and reins in a widely used surveillance method. But while the ruling is welcome it remains narrow, leaving law enforcement with many tools that can be used to uncover intimate details about people's private lives without a warrant, including persistent aerial surveillance, license plate readers, and facial recognition.

Background 

Timothy Carpenter and others were involved in a string of armed robberies of cell phone stores in Michigan and Ohio in 2010 and 2011. Police arrested four suspects in 2011. One of these suspects identified 15 accomplices and handed over some of their cell phone numbers to the Federal Bureau of Investigation. Carpenter was one of these accomplices.

Prosecutors sought Carpenter's cell phone records pursuant to the Stored Communications Act. They did not need to demonstrate probable cause (the standard required for a search warrant). Rather, they merely had to demonstrate to judges that they had "specific and articulable facts showing that there are reasonable grounds to believe” that the data they sough were “relevant and material to an ongoing criminal investigation.”

Carpenter's two wireless carriers, MetroPCS and Sprint, complied with the judges' orders, producing 12,898 location points over 127 days. Using this information prosecutors were able to charge Carpenter with a number of federal offenses related to the armed robberies. 

Before trial Carpenter sought to suppress the CSLI data, arguing that the warrantless seizure of the data violated the Fourth Amendment, which protects "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The district court denied Carpenter's motion to suppress. He was found guilty and sentenced to almost 116 years in prison.

Carpenter appealed to the Court of Appeals for the Sixth Circuit, which affirmed his conviction.

The Doctrines

Since the 1967 Supreme Court case Katz v. United States courts have deployed the "reasonable expectation of privacy test" to determine whether law enforcement officers have conducted a Fourth Amendment search. According to this test, outlined in Justice Harlan's solo Katz concurrence, officers have conducted a Fourth Amendment "search" if they violate a suspect's subjective expectation of privacy that society is prepared to accept as reasonable.  

The Sixth Circuit determined that Carpenter did not have a reasonable expectation of privacy in his physical location as revealed by CSLI. This determination is consistent with the so-called "Third Party Doctrine" developed by the Supreme Court in United States v. Miller (1976) and Smith v. Maryland (1979). According to the Third Party Doctrine, people don't have a reasonable expectation of privacy in information they voluntarily surrender to third parties such as banks and phone companies.

The Ruling

In an opinion written by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor the Court sided with Carpenter without jettisoning the "reasonable expectation of privacy test" or the Third Party Doctrine. The opinion is a narrow one, holding that the warrantless acquisition of historic CSLI information does violate a reasonable expectation of privacy in physical location. In addition, the Court noted that the Third Party Doctrine remains in place, even if it doesn't extend to CSLI.

According to the Court, this is because of the "unique nature" of cell-site records:

But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.

The Court's majority opinion make a number of points to emphasize the revealing nature of CSLI data, including the ubiquitousness of cell phones among American adults, and the fact that, "when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user." The opinion goes on to discuss how government officials can "travel back in time" to retrace cell phone users' behavior.

Surveillance Tools Left Available

The Carpenter ruling will have an immediate impact on law enforcement. Last year, law enforcement sent 125,000 CSLI requests to AT&T and Verizon. While presumably many of these requests were related to CSLI data revealing suspects' movements for less than a week, it's worth considering this comment from Laura Moy, Deputy Director of Georgetown Law’s Center on Privacy & Technology and former CSLI analyst for the Manhattan District Attorney.

However, law enforcement can still conduct intrusive and revealing warrantless searches using a wide range of technologies. In the Carpenter majority opinion the Court noted, "we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI."

But our physical movements can be tracked without CSLI. The majority's mention of CSLI allowing government officials to "travel back in time" reminded me of the Baltimore Police Department's use of persistent aerial surveillance equipment, which its developer described as, "a live version of Google Earth, only with TiVo capabilities." He wasn't joking.

License plate readers are also useful tools for tracking physical movements. Immigration and Customs Enforcement (ICE), the federal agency responsible for deportations, has access to more than 2 billion license plate images, allowing its agents to engage in near real-time tracking and to access years-worth of location data. The license plate data available to ICE includes images from 24 of the US’ top 30 most populous metropolitan areas.

Law enforcement agencies across the country are pursuing real-time facial recognition capability. Other emerging police technologies, such as body cameras and drones, may soon be regularly outfitted with real-time facial recognition capability. This capability will provide another means by which police can track our physical movements.

Persistent aerial surveillance, license plate readers, and facial recognition remain a serious concern despite the Court's ruling in Carpenter.

Yet the fact that the Carpenter ruling is narrow should not detract from its significance. It's one of the the most important 4th Amendment Supreme Court cases in years and lays the groundwork for future cases involving a range of surveillance tools. 

For more on Carpenter listen to Cato Senior Fellow Julian Sanchez and Cato senior fellow in constitutional studies Ilya Shapiro discuss the case in a recent Cato Daily Podcast.

May 31, 2018 12:11PM

Steel Yourself as Trump Cuts Off Trade to Spite His Face

Various news outlets are reporting that, at midnight tonight, special U.S. tariffs on imports of steel and aluminum from Canada, Mexico, and the European Union will go into effect. This action stems (incongruously and capriciously) from two nearly yearlong investigations conducted by the U.S. Department of Commerce under Section 232 of the Trade Expansion Act of 1962, which found that imports of steel and aluminum “threaten to impair the national security” of the United States. This seldom used statute gives the president broad discretion both to define what constitutes a national security threat and to prescribe a course to mitigate the threat. On both counts, President Trump has abused that discretion.

In March, the president announced his intention to impose duties of 25 percent on steel imports and 10 percent on aluminum imports from all countries. But temporary exemptions were granted to some countries in an effort to extort commitments from them to do their part to reduce the U.S. trade deficit (by selling us less stuff and buying from us more stuff) or to agree to U.S. demands in ongoing trade negotiations (South Korea, Canada, Mexico). The Koreans succeeded by agreeing to limits on their steel exports and by upping the percentage of US-made automobiles that can be sold in Korea without meeting all of the local environmental standards. Ah, free trade…

Apparently, the Europeans, Canadians, and Mexicans haven’t bent sufficiently to Trump’s will, therefore those countries—those steadfast allies—constitute threats to U.S. national security and will no longer be exempt from the tariffs, which means that U.S. industries that rely on steel and aluminum (imported or domestic) will be hit with substantial taxes to mitigate that threat. Got it?

This announcement comes on the heels of one made earlier this week regarding the “trade war” with China, which is back on 10 days after Treasury Secretary Steve Mnuchin declared it to be “put on hold.” (I guess it was just a rain delay.) On June 15, the administration will publish the final list of Chinese products—about 1,300 products valued at about $50 billion—that will be hit with 25 percent duties. The Chinese government has published its own list of U.S. exports that will be hit with retaliatory duties in China.

So, as has been the case every day for the past 16+ months, the U.S. and global economies (even as they’ve strengthened) remain exposed to the whims of an unorthodox president who precariously steers policy from one extreme to the other, keeping us in a perpetual state of uncertainty. With the Europeans, Canadians, Mexicans, and Chinese all preparing to retaliate in response to these precipitous U.S. actions, at the stroke of midnight we may finally get the certainty of the beginning of a deleterious trade war.

May 21, 2018 5:35PM

Trump’s Trade Policy Is a Disaster, But Postponing the China Trade War Was Smart

Reactions in the United States to the Trump administration’s announcement on Saturday that it would refrain from imposing new tariffs on imports from China for the time being have been decidedly negative. One would expect criticism from the unions, the steel producers, and old economy manufacturing trade associations. After all, many seemed not the least bit concerned about burdening the economy with 25 percent duties on $50-$150 billion of Chinese imports and retaliation of similar scale against U.S. exports, as long as they secured for themselves a small bag of booty in the process. Trump’s “America-First” brand of economic nationalism was everything they had ever hoped for—and now it may be in retreat.

Likewise, one can understand why the administration’s decision to reconsider its approach to Chinese technology companies and Chinese technology transgressions makes the security hawks unhappy. Many of them have been peddling a self-perpetuating narrative that is one part fact to three parts innuendo, hearsay, and speculation that war (and not just the trade kind) between the United States and China is inevitable, and that there is very little scope for further cooperation. Why, they wonder, would Trump squander the leverage to compel real Chinese reform that was afforded by the results of the Section 301 investigation and ZTE’s existential predicament?

But I am most disappointed by those who present themselves as pro-trade, internationalist, cosmopolitan, and informed, but who seem strangely disappointed that the administration stepped back from the abyss. There was a point when these folks warned about the perils of Trump’s protectionist path, and screamed from the hilltops about how Trump’s unilateralism would kill the World Trade Organization. On Twitter, they goad Trump: “Trump blinked.” “Xi schooled Trump.” “U.S. credibility has been squandered” (as if it was somehow squandered THAT moment). For some of these people, disdain for Trump or the desire to be perceived as the most offended by his behavior is more important than supporting one of his rare decisions to do the right thing.

This weekend’s announcement, arguably, was the first piece of good trade policy news the Trump administration has delivered during its tumultuous 16-month reign. Yes, the administration’s trade policy has been a comedy of errors from the outset. Trump’s America First policies have betrayed his administration’s utter ignorance of the interdependence of the global economy, divided the country, and strained long-standing relationships with governments, businesses, and people on every continent. Had the president been remotely informed about international trade before taking office—instead of taking his primer courses on our time and on our dime—we might have been spared 16 months of wrenching policy mistakes.

The big takeaway from this weekend’s stand down is that the United States got taken by the Chinese, who’ve offered mere promises to purchase all sorts of U.S. exports and that the Trump administration has made fools of themselves in this process. Well, the Trump administration was always going to look foolish in this process. After all, who doesn’t look foolish pursuing nonsensical objectives, such as achieving bilateral trade balance, while breaking rules and strong-arming trade partners to get there? All Americans should be embarrassed by U.S. trade policy nowadays, but with respect to developments with China there is a better headline. Lost in an environment that is heavy on snark and light on measured analysis is that the worst of all outcomes—a deleterious trade war—has been avoided for now. Postponing a trade war is far superior to waging one, so as we spend the present lamenting the precarious near future, let’s also consider how we might make enduring trade peace more likely.

There is plenty of blame to go around for the deteriorating state of affairs, but let’s not forget that it is nearly a $750 billion relationship. It can’t be all bad. But despite that interdependence—or perhaps because of it—there are numerous sources of friction. The U.S. list of gripes famously includes subsidization of industry, the continued prominence of state-owned enterprises, currency manipulation, dumping, discrimination against U.S. companies, limited investment opportunities, closed services markets, relatively high tariffs, unfair labor practices, intellectual property theft, indigenous innovation policies, joint venture requirements, forced technology transfers, and many other allegations. These have been characterized as the vestiges of China’s incomplete transition to a market economy and there is definitely truth to it.

Chinese gripes are less familiar to Americans’ ears, but include the adverse treatment of China as a non-market economy in antidumping cases, an allegedly over-inclusive list of products subject to U.S. export controls, a crackdown on Chinese investment in the United States, U.S. blacklisting of Chinese information and communications technology firms, and other market access restrictions. 

Surely—and especially if the alternative is a ruinous trade war—many of these issues can be resolved. Washington and Beijing should go to the negotiating table, exchange wish lists, identify priorities, and put in writing an agreement that more fully opens both markets to trade in goods, services, and cross-border investment, and weeds out discriminatory innovation policies. Meanwhile, both governments should commit in that agreement to adopt less invasive, yet far more comprehensive, statistically valid approaches to screening technology products for cyber risks without compelling the sharing of source code or trade secrets (as described in this paper about cybersecurity and protectionism).

May 18, 2018 1:52PM

ICE Scraps Plans For “Extreme Vetting” Prediction Tech

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During his presidential campaign Donald Trump proposed the "extreme vetting" of immigrants. Civil libertarians criticized the proposal, not least because the Extreme Vetting Initiative mandated by one of President Trump's first executive orders sought technology that would use machine learning to determine whether visa applicants would be likely to contribute to society and the national interest. Fortunately, Immigration and Customs Enforcement (ICE) – is no longer pursuing this vetting technology.

In January 2017 President Trump issued Executive Order 13769, which stated in part (emphasis mine):

Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as [...] a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

The Extreme Vetting Initiative tasked with implementing (among things) this feature of Trump's executive order, included the following in its statement of objectives:

ICE must develop processes that determine and evaluate an applicant’s probability of becoming a positively contributing member of society as well as their ability to contribute to national interests in order to meet the EOs outlined by the President.

A background document on the initiative outlined requirements, including the exploitation of publicly available information found on blogs, social media, academic websites, and other online sources. The same backgrounder went on to state that the goal was for the initiative to generate 10,000 investigatory leads each year.

Earlier this year dozens of computer scientists, mathematicians, and engineers wrote a letter to then-Acting Secretary of Homeland Security Elaine Duke, outlining the numerous issued associated with the Extreme Vetting Initiative. As I noted in November last year, the letter highlighted that ICE's proposal would likely be discriminatory as well as unreliable. From the letter:

According to its Statement of Objectives, the Extreme Vetting Initiative seeks to make “determinations via automation” about whether an individual will become a “positively contributing member of society” and will “contribute to the national interests.” As far as we are aware, neither the federal government nor anyone else has defined, much less attempted to quantify, these characteristics. Algorithms designed to predict these undefined qualities could be used to arbitrarily flag groups of immigrants under a veneer of objectivity.

Inevitably, because these characteristics are difficult (if not impossible) to define and measure, any algorithm will depend on “proxies” that are more easily observed and may bear little or no relationship to the characteristics of interest. For example, developers could stipulate that a Facebook post criticizing U.S. foreign policy would identify a visa applicant as a threat to national interests. They could also treat income as a proxy for a person’s contributions to society, despite the fact that financial compensation fails to adequately capture people’s roles in their communities or the economy.

For more information on the Extreme Vetting Initiative, including original ICE documents, visit the Brennan Center for Justice's resource page.

May 1, 2018 10:51AM

CBP Drones: Inefficient and a Threat to Privacy

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My colleague David Bier and I have written a policy brief on the unmanned aerial vehicles (UAVs) flown by Customs and Border Protection (CBP). We argue that CBP's fleet of Predator B drones are a threat to the privacy of Americans living along the border and an inefficient tool for locating illegal border crossers and illegal drugs. In addition, state and local use of these UAVs mean that American living in the interior are also at risk of being the target of warrantless surveillance.

Predator B drones may have a reputation as highly efficient military tools, but on the homefront they've proven inefficient at contributing to border security. For instance, in the last few years CBP's predator drones have contributed to less than a percent of illegal border crosser apprehensions at a cost of $32,000 per arrest. When it comes to marijuana seizures, the drone fare little better, being responsible for about 3 percent of marijuana seizures in the same time period.

These inefficient UAVs pose a threat to Americans living along the border and in the interior. State and local law enforcement can request CBP drones for assistance. In fact, the first domestic law enforcement use of UAV to assist an arrest was in 2011, when police in North Dakota requested the use of a CBP Predator. Thanks to three Supreme Court cases from the 1980s warrantless aerial surveillance does not run afoul of the 4th Amendment. While some states have passed warrant requirements for UAVs, it's not clear whether CBP adheres to state warrant requirements when acting on the behest of state and local law enforcement.

David and I finish our paper with a list of recommendations:

  • CBP should not conduct drone surveillance more than five miles from the border. ƒ
  • If CBP does use its drones to support state and local operations, it should ensure that its drone pilots comply with state and local drone legislation, including warrant requirements. ƒ
  • CBP should not seek drones with facial recognition capability, which puts law-abiding Americans’ privacy at increased risk. ƒ
  • At least six months before deploying new surveillance technology, CBP should disclose details about the technology’s capabilities, including information about the type of data to be collected, how long CBP plans to keep the data, when CBP will share the data, and with whom it will share the data. ƒ
  • CBP should study replacing drones with surveillance technology that limits unnecessary data collection on U.S. residents.

Read the full policy brief here.