U.S. border agents don’t need any stinking reasonable suspicion to search laptops, cell phones or other electronic devices at the border, ruled a federal judge on New Year’s Eve. He added that such searches do not violate the First or Fourth Amendments.
According to Judge Edward R. Korman of the Federal District Court for the Eastern District of New York [pdf], border agents search electronic devices so rarely that “there is not a substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion.” Well that seems like an odd statement given while dismissing the ACLU’s case, since previous ACLU research estimated that two out of every three Americans have lost Fourth Amendment protections to DHS.
The judge’s ruling falls nicely in line with a former Department of Homeland Security decision that border agents do not need a warrant or to prove any reasonable suspicion before such searches, and that those searches do not breach your First or Fourth Amendment rights. That's why the ACLU called areas within 100 miles of all U.S. borders a “Constitution-Free Zone.”
Besides deciding that no reasonable suspicion is required for electronic device searches that are supposedly “rare,” Judge Korman suggested for people to go back to doing things like they did before widespread laptop usage started in the 21st century; back then, people used to travel for work and take notes and photos but “no one ever suggested the possibility of a border search had a chilling effect on his or her First Amendment rights.”
“While it is true that laptops may make overseas work more convenient, the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel,” Korman wrote. While dismissing the 2010 lawsuit that challenged electronic gadget searches at U.S. borders, he also pointed to a study conducted by Dell that found business travelers “lose or misplace more than 16,000 laptops per week,” so people should “think twice” about the info they carry on a laptop.
The ruling talks about the difference between a "quick look," which involves opening the computer and "clicking through various folders," and a forensic search, which involves “an exhaustive search” of everything on the hard drive including unallocated space that “contains deleted data.” Although the judge finds both searches to be rare, he wrote that the plaintiffs "must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to 'guarantee' confidentiality to their sources, or protect privileged information."
The decision also mentions Customs and Border Protection policy that is play until the electronic device is turned over to Immigrations and Customs Enforcement and then ICE policy kicks in. Both have rules for “searching, copying, and detaining electronic devices at the international border without reasonable suspicion.” DHS spokesman Peter Boogaard told the New York Times, “These checks are essential to enforcing the law, and protecting national security and public safety, always with the shared goals of protecting the American people while respecting civil rights and civil liberties.”
However, as the ACLU pointed out, a 2011 DHS Civil Rights/Civil Liberties Impact Assessment of its electronics search policy, found that “a reasonable suspicion standard is inadvisable because it could lead to litigation and the forced divulgence of national security information, and would prevent border officers from acting on inchoate ‘hunches,’ a method that it says has sometimes proved fruitful.”
“We're disappointed in today's decision, which allows the government to conduct intrusive searches of Americans' laptops and other electronics at the border without any suspicion that those devices contain evidence of wrongdoing,” stated ACLU attorney Catherine Crump. “Suspicionless searches of devices containing vast amounts of personal information cannot meet the standard set by the Fourth Amendment, which prohibits unreasonable searches and seizures. Unfortunately, these searches are part of a broader pattern of aggressive government surveillance that collects information on too many innocent people, under lax standards, and without adequate oversight.”