Borderline: Why the Federal Government May Use Backscatter Technology to Search Vehicles and Containers at International Borders, but the Fourth Amendment May Block Its Use on Persons

• Publication year: 2022

44 Creighton L. Rev. 1357. BORDERLINE: WHY THE FEDERAL GOVERNMENT MAY USE BACKSCATTER TECHNOLOGY TO SEARCH VEHICLES AND CONTAINERS AT INTERNATIONAL BORDERS, BUT THE FOURTH AMENDMENT MAY BLOCK ITS USE ON PERSONS

BORDERLINE: WHY THE FEDERAL GOVERNMENT MAY USE BACKSCATTER TECHNOLOGY TO SEARCH VEHICLES ANDCONTAINERS AT INTERNATIONAL BORDERS, BUT THE FOURTH AMENDMENT MAY BLOCK ITS USE ON PERSONS

I. INTRODUCTION

The Executive's power to secure the borders of the United States is nearly as old as the country itself.(fn1) The United States Customs and Border Protection ("CBP") agency is the nation's frontline border agency, and CBP strives to protect United States borders from terrorism and prevent the smuggling of humans, weapons, and drugs.(fn2) CBP's mission to control United States borders is of critical importance to the security of the American people and the United States economy.(fn3) In recent years, CBP has begun utilizing backscatter technology ("BT") to help combat such problems and enhance border security.(fn4)

BT is an x-ray technology that is capable of detecting weapons, drugs, explosives, and other contraband concealed on a person's body or inside vehicles or containers.(fn5) BT detects such items by utilizing electronically generated x-rays to create photo-like images of the object examined.(fn6) BT has the potential to increase national security, but with its ability to see through clothes, vehicles, and walls, BT is potentially one of the most invasive technologies conceivable.(fn7) To date, no court has tried the issue of whether the use of BT constitutes a search under the Fourth Amendment, or what limitations the Fourth Amendment imposes upon its use, but courts have viewed the use of other high-tech threat detection technologies as searches under the Fourth Amendment.(fn8) Just as the Supreme Court of the United States has examined the constitutionality of other technologies, this Article attempts to answer the question of how constitutional constraints limit the power of technology to diminish an individual's privacy rights.(fn9) Specifically, this Article examines the Fourth Amendment's constraints on CBP's use of BT.(fn10)

This Article's Background section first discusses BT, including how BT works and how CBP is currently using BT at international borders.(fn11) This Article's Background then discusses some of the concerns surrounding the use of BT in public places, and a few of the options available to those who disapprove the government's use of BT.(fn12) The Background section also discusses several cases in which courts have discussed the use of high-tech devices and their Fourth Amendment implications, as well as the constitutionality of conducting searches at the international border.(fn13)

The Argument section shows that the use of BT constitutes a search under the Fourth Amendment, but in most circumstances, the warrantless, suspicionless use of BT does not violate the Fourth Amendment at international borders or their functional equivalents.(fn14) However, the warrantless, suspicionless use of BT to search a person's body at the border could violate an individual's Fourth Amendment rights if courts consider the use of BT to constitute a non-routine border search.(fn15) Finally, this Article concludes by arguing that the use of BT enhances CBP's ability to secure the nation's borders, and CBP should continue to use BT to protect the people of the United States from external threats.(fn16)

II. BACKGROUND

A. A Description of How Backscatter Technology Works

Dr. Steven W. Smith introduced the first backscatter technology ("BT") security device in 1992.(fn17) BT uses low-level, electronically generated x-rays to generate a photo-like, x-ray image of the object examined. (fn18) By reviewing the images produced, United States Customs and Border Protection ("CBP") agents are able to detect weapons, drugs, explosives, and other contraband that conventional x-ray machines or metal detectors may not be able to detect.(fn19)

BT uses a narrow beam of x-rays that quickly scans an object.(fn20) A computer collects data from the scan, and then projects a high-quality image onto a monitor.(fn21) Each scan takes eight to ten seconds to complete.(fn22) During the scan, x-ray photons interact with the object being scanned.(fn23) As these photons meet the object, they will either be scattered by or absorbed by the object under inspection.(fn24) Objects made of high-density elements are most likely to absorb the x-ray photons, whereas organic materials and other objects made of low-density elements are most likely to deflect the photons, causing them to scat-ter.(fn25) The BT device detects and plots the intensity of photons reflected or scattered back during the scan.(fn26) A computer measures the varying levels of intensity and converts the data into an electronic image.(fn27) The computer then displays the image on a monitor, where the image may be reviewed for contraband or potential threats.(fn28)

Examples of organic or low density materials include cigarettes, drugs, explosives, and human bodies.(fn29) Because these low density materials cause greater photon scattering than high density materials, they are more clearly visible in the computer image, appearing as bright white objects.(fn30) According to American Science and Engineering, inc., a manufacturer of BT devices, this feature allows security personnel to quickly interpret the images and identify both the presence, as well as the exact position, of organic or low density elements located inside the object scanned.(fn31) High density materials, on the other hand, appear in the image as dark objects.(fn32) This contrast facilitates detection of high density objects, such as weapons, as scans reveal the form and shape of the objects inspected.(fn33)

B. The Versatility of Backscatter Technology and its Use in Various Contexts

The use of backscatter technology ("BT") is becoming increasingly prevalent.(fn34) For example, BT has been used in diamond mines and prisons for several years.(fn35) The United States government currently uses BT in airports, in city streets, at military bases, and at international borders.(fn36) However, this Article focuses on the government's use of BT at the border.(fn37)

According to the United States Customs and Border Protection ("CBP") agency, United States borders are vulnerable to persons who smuggle drugs and other forms of contraband into the United States.(fn38) A CBP report indicated that in 2009, CBP seized 2.4 million pounds of narcotics and prevented 780,721 illegal or inadmissible aliens from entering the United States.(fn39) CBP uses Z portals and Z backscatter vehicles to help secure international borders.(fn40)

1. Backscatter Portals

One way the United States Border Protection ("CBP") agency uses backscatter technology ("BT") at international borders is with drive-through inspection systems for vehicle checkpoints.(fn41) These arch-like BT machines, known as "portals," cost up to $2 million each and are capable of screening as many as 120 vehicles per hour.(fn42) Portals use BT technology to produce high-quality images of cars, trucks, containers, and their contents.(fn43) Portals create these photo-like images as vehicles pass through the portal at approximately five kilometers per hour.(fn44) Portals do not cause permanent damage to vehicles scanned, and a vehicle's occupants do not need to exit the vehicle during a portal scan.(fn45)

Portals scan the whole vehicle or object at once, and create an image depicting three simultaneous views of the object scanned: right, left, and top-down.(fn46) Agents monitoring the images created by the portal are able to detect explosives, weapons, persons, drugs, and other contraband that may be concealed inside the vehicle scanned.(fn47)

In August 2008, the Transportation Security Administration ("TSA") began a four-week test of a BT Portal at a ferry terminal near Havelock, North Carolina.(fn48) The TSA reported that the presence of the portal did not alarm motorists.(fn49) Shortly after the TSA concluded its test, CBP began using a BT Portal at San Ysidro, California, the busiest port of entry to the United States.(fn50) Based upon the performance of the portal at San Ysidro, CBP already anticipates using additional portals in the future.(fn51)

2. Backscatter Vehicles

Another way the United States Customs and Border Protection ("CBP") agency uses backscatter technology ("BT") is with BT-equipped vehicles.(fn52) CBP uses BT-equipped vehicles ("ZBVs")(fn53) to inspect vehicles and containers for security threats and contraband such as car bombs, explosives, smuggled persons, terrorists, trade fraud items, currency, and drugs.(fn54)

ZBVs have three primary operation modes: drive-by mode, stationary scan mode, and personnel scanning mode.(fn55) in drive-by mode, the ZBV is capable of inspecting vehicles and objects as the ZBV passes them.(fn56) A ZBV is also able to scan targets as they pass by the ZBV.(fn57) In stationary scan mode, the ZBV is capable of scanning not only a targeted vehicle, but also any persons inside the vehicle.(fn58) The personnel scanning mode allows ZBV operators to detect weapons or explosives that may be concealed on a person's body.(fn59)

Although ZBV images contain less detail of human bodies than the scanners used in airports, ZBVs are still capable of producing detailed images...