Monday, May 14, 2007
How Big Is Your Electronic Footprint?
In this morning's NYT, Adam Liptak has another good Sidebar column (keep in mind that NYT Select is available for free to .edu email users). This time Liptak writes on the subject of visitors from Canada who have been refused entry to the US on account of drug use, in some cases, drug use that occurred more than 33 years ago. According to Liptak, Andrew Feldmar, a Vancouver therapist, was refused entry to the US when a border guard at Washington state did a quick Google search and found an article Feldmar had written about his past LSD use. (To the guard's credit, he asked Feldmar if he authored the article and whether the facts stated were accurate, which Feldmar affirmed.) Notwithstanding Feldmar's deep professional and personal contacts in the US, he was refused entry and told to gain a formal waiver from the consul.
Turns out the US is engaging in a tit-for-tat strategy--of sorts. Canada, according to Liptak's story, also regularly turns away convicts for DUI in the absence of a waiver.* Mind you, that proposition comes from the American consul in Vancouver, and it's unclear whether (and perhaps doubtful) that Canadian border guards are googling your name upon entry.
Put aside the legitimate questions one might raise about how to deal with the construction of past convictions from migrating offenders. What's troubling about the US practice here has to do with the difference between an adjudicated wrongdoing (the DUI conviction) and a non-adjudicated instance of wrongdoing, which is what kept Feldmar out. Adjudicated wrongdoings are generally determined after access to counsel, exhausting of various defenses, etc. One of these defenses is particularly salient in the context of contemporary comparative drug policy: what if the conduct that kept folks like Feldmar out was legal in the jurisdiction it occurred when it occurred? This is precisely the due process consideration that the Supreme Court properly kvetched about in the BMW v. Gore and State Farm punitive damages cases. If Feldmar's story is generalized, US border guards are now empowered to be a one-person judge, jury, and executioner of another nation's drug policy--and who knows what other kinds of inquiries border guards will feel comfortable making; can they call your ex-boyfriends or teachers to ferret out unadjudicated wrongdoing? Uh-oh, I better tell my college roomie to expect a call about his peanut butter I once finished without asking.
Update: As I am in the process of adjusting my status (belatedly, post-wedding), I should note, in case the nice folks at ICE are reading this, that I was really just kidding about the peanut butter. I almost never eat it, and certainly didn't filch any. I promise!
* Update: I didn't mean to suggest that the US policy was done in intentional response to Canada's policy; rather, what I meant to convey was that there's a veneer of reciprocity between the two nations. It's likely that the US policy would apply to all non-citizens, not just Canadians, and the same is likely true of the Canadian policy too.
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What's troubling about the US practice here has to do with the difference between an adjudicated wrongdoing (the DUI conviction) and a non-adjudicated instance of wrongdoing, which is what kept Feldmar out. Adjudicated wrongdoings are generally determined after access to counsel, exhausting of various defenses, etc.
I won't defend the U.S. policy: it seems very silly to me. But I don't know why the key difference is between adjudicated and non-adjudicated offenses. Feldmar wrote about his offense, and freely admitted it to the official; are we really worried that perhaps he did not commit the offense? As for adjudicated claims, I'm not sure why we would think they are necessarily the most reliable. For example, many DUI convictions do not trigger a right to counsel in the U.S., and there is no lawyer present for the defendant. Also, we don't know about the reliability of the process in the home country more generally, so the line between adjudicated and nonadjudicated proceedings seems slippery.
Posted by: Orin Kerr | May 14, 2007 2:14:03 PM
Not all adjudicated conduct abroad should be respected if they have kooky courts, but it's at least a better place to start drawing the line than the current US policy. If the US wanted to ensure that only conduct that was proven in courts comparable to the US, then that would be fine too, but that's an even more restrictive policy than the one currently used by the US (to the extent googling is now a policy). As to the DUI point, if there hadn't been adequate adjudication, then that's a reason for concern, not celebration. Though the situation is distinguishable, one might think that what motivated the Court's slim majority, in its Apprendi-Blakely line of cases, is a desire for relevant "criminal" facts to be shown and proven BRD (and not just to the jury). The exception in that line of cases (Almandarez-Torres) has been for prior convictions because there's respect to the determinations of prior adjudications and a need to consider comity and finality. In any event, Orin, where or how do you propose the line be drawn?
Posted by: Anon | May 14, 2007 6:31:11 PM
I'm no expert in this, but one possibility would be to single out specific harmful offenses rather than say that anyone who has committed any crime makes the list. But my point is narrower, just that the adjudicated vs. non-adjudicated line doesn't seem to work.
Posted by: Orin Kerr | May 14, 2007 8:26:00 PM