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.