The Cost of a New Cold War: Loss of the Fourth Amendment

As the United States and China battle over global influence, some experts and politicians have begun calling the growing tension between the two superpowers a “new Cold War.” [1] American enmity towards the Chinese government has, unfortunately, affected the judgment of the U.S. intelligence community towards American citizens of Chinese descent, who have often been characterized as sympathizers and even spies of the Chinese government. On June 15, 2022, top intelligence officials, in a new Office of the Director of National Intelligence (ODNI) report, acknowledged that they may collect more phone calls from Chinese Americans in order to combat Chinese espionage. [2]

This effort to bolster national security has raised concerns about discriminatory government surveillance. Indeed, the U.S. government shares a long history of limiting the right to privacy in the name of national security—protecting the country from internal subversion, foreign aggression, and terrorism. The Supreme Court has often aligned itself with the executive branch on issues of national security, especially when the country was engaged in a military or political conflict with a foreign nation. From the 1944 case of Korematsu v. United States, where the Court overlooked Fifth Amendment rights by allowing the forced relocation of Japanese Americans, to Dennis v. United States, which suppressed political dissidents’ free speech during the Cold War, the Court had repeatedly failed to uphold individuals’ civil liberties. [3] The nine justices now must wrestle with this renewed challenge: in the recent cases of Carpenter v. United States and Trump v. Hawaii, both decided in 2018, the Court further delineated the line between national security and civil liberties, including access to First and Fourth Amendment rights. With U.S. intelligence agencies claiming to search private communications of Chinese Americans, the Court must protect their rights to privacy, which could very likely rely on the rulings of Carpenter v. United States and Trump v. Hawaii. But while Carpenter should serve as an important precedent, the logic behind Trump ought to be reexamined to avoid the infringement of citizens’ rights by the ambiguous threat of national security. 

The surveillance of Chinese Americans’ private communications implicitly violates the Fourth Amendment of the U.S. Constitution, which forbids the government to conduct warrantless “unreasonable searches and seizures” on citizens. In the 2018 case of Carpenter v. United States, the Court’s majority ruled that warrantless search and seizure of cell phone records, including the location and movements of users, breached the Fourth Amendment. [4] In the majority opinion, Chief Justice John Roberts argued that since cell phones are “such a pervasive and insistent part of daily life that carrying one is indispensable to participation in modern society,” cell phone data are not truly “shared” with third parties like cell phone service providers, even though they are made available to those companies. [5] If cell phone data are allowed to be classified as “business records” which the government may look through, then other contents of a cell phone or any private material in the form of a digital document may also be searched, since they are technically also shared with a third party. Following this definition, texts, emails, diaries, physical locations, and any other information that one could deem private, could be accessible to the government. The American people could either give up their privacy, or not own a cell phone, which would make navigating everyday life nearly impossible. To avoid the complete annihilation of the Fourth Amendment, the Court made the right judgment by proclaiming cell phone data as a form of private property – one that should never be freely obtainable by the government.

Aware that looking through phone calls and emails of Chinese Americans would violate the ruling of Carpenter and the Fourth Amendment, the U.S. government has created new protocols for the intelligence community to follow. In May 2022, the Office of the Director of National Intelligence published a guideline for employees to follow when carrying out intelligence activities concerning the privacy and other civil liberties of Chinese Americans. The ODNI report recommended agencies to expand unconscious bias and cultural competency personnel training, as well as to make public demographic metrics regarding the length of time and the results of security clearance processes. [6] However, while these measures aim to promote transparency and more effectively protect Chinese Americans against government surveillance, their enforcement remains uncertain. The Court must establish that the intelligence community adheres to and practices the measures that the ODNI has issued. 

Indeed, in Trump v. Hawaii, a case involving then-President Trump’s controversial travel ban, the dissenting justices pointed out that, although the executive branch made promises to uphold civil liberties and civil rights, it often broke them due to the lack of oversight. The majority of the Court argued that then-President Trump’s executive order banning foreign nationals of a number of countries, many of which have a large Muslim population, does not discriminate against any religious groups, since its purpose is to “retaliate for conduct by [certain] governments that conflicted with U.S. foreign policy interests,” and that the vetting process for visa distribution of foreign nationals would be examined on a case-to-case basis. [7] However, as Justice Breyer indicated in his dissenting opinion, “there is evidence that supports [...] that the Government is not applying the executive order as written.” [8] Although Proclamation 9645 provided that the State and Homeland Security Departments would “coordinate to adopt guidance” for the reference of consular officers when deciding to grant waivers, no such guidance has been issued. [9] Therefore, neither Proclamation 9645 nor the State and Homeland Security Department addressed any legal ramification of malpractice. As a result, hundreds of individuals, including relatives of U.S. citizens, were denied entry to the country under the Proclamation, despite meeting the waiver’s criteria. The logic of the majority ruling of Trump v. Hawaii therefore contained a major defect—it only considered the constitutionality of the Proclamation as written, which did purportedly aim to protect First Amendment rights of U.S. citizens by vowing to review cases individually. But the ruling neglected the actual administration of Trump’s order, which strayed from its stated purpose. Essentially, the Court considered a de jure application of the travel ban, not its de facto effects. In the future, the Court must examine the latter in more scrutiny, and provide that the government apply laws and mandates as written.

The Supreme Court should not only interpret the law, but also ensure that the White House’s executive power is kept within limits. The ODNI report does appear to genuinely care for the rights to privacy of Chinese Americans, but it is not enough. Legal accountability is necessary to prevent government infringement of civil liberties. Should a case arise in the future concerning the Fourth Amendment rights of Chinese Americans, the Court ought to not only utilize their ruling in Carpenter to emphasize the privacy of the cell phone and email records which may be snatched by American spy agencies, but also reevaluate its arguments in Trump v. Hawaii to highlight the importance of the execution of a government mandate, guaranteeing that the executive office is keeping its commitment to the protection of civil liberties.

The pressing issue of national security concerns all Americans, and potential threats to the country should not be dismissed. At the same time, the United States must not under any circumstances sacrifice the First and Fourth Amendment rights of its own people to achieve such security. Moreover, the Supreme Court needs to examine the government’s de facto actions and prevent them from contradicting the law. With the potential rise of a new Cold War between Washington and Beijing, Americans of Chinese descent face the growing danger of being deprived of their rights. The task of safeguarding their civil liberties thereby falls onto the shoulders of the nine Supreme Court justices, who must forestall the tragedy of another Korematsu where the rights of innocent U.S. citizens are compromised due to a separate political conflict between two governments.

Edited by Devon Hunter

Sources:

[1] David E. Sanger, “Washington Hears Echoes of the ‘50s and Worries: Is This a Cold War with China?” New York Times, October 17, 2021, https://www.nytimes.com/2021/10/17/us/politics/china-new-cold-war.html.

[2] Nomaan Merchant and Eric Tucker, “Spy Agencies’ Focus on China Could Snare Chinese Americans,” Associated Press, June 15, 2022, https://apnews.com/article/business-china-beijing-race-and-ethnicity-racial-injustice-b6c439373c052a8d155617e09ac2b906.

[3] Geoffrey R. Stone, “National Security v. Civil Liberties,” California Law Review 95, no. 6 (2007): 2203-2212.

[4] Carpenter v. United States, 585 U.S. ___, at *1 (2018).

[5] Carpenter v. United States, 585 U.S. ___, at *3 (2018).

[6] Office of the Director of the National Intelligence, “Best Practice to Protect Privacy, Civil Liberties, and Civil Rights of Americans of Chinese Descent in the Conduct of U.S. Intelligence Activities,” Reports and Publications 2022, 2022.

[7] Proclamation No. 9645, 82 Fed. Reg. 45161 (Sep. 27, 2017); Trump v. Hawaii, 585 U.S. (2018), 20.

[8] Trump v. Hawaii, 585 U.S. ___, at *3 (2018) (Breyer, J., dissenting).

[9] Trump v. Hawaii, 585 U.S. ___, at *4 (2018) (Breyer, J., dissenting).