Suspicionless Search of Electronic Devices at U.S. Borders – Is Your Information Safe in the Constitution Free Zone?

Tuesday, February 26, 2013, by Kenneth Jennings

The American Civil Liberties Union (ACLU) claims that their now exists a “constitution free zone,” wrapping the contours of the United States.  Within this zone, the ACLU suggests, well-established constitutional guarantees of free speech, and protections against unreasonable search and seizure no longer apply.  The basis of this claim lies in the government’s definition of the area within a reasonable distance of the U.S. border as a span of 100 miles.  That region wholly encompasses ten states (Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey and Rhode Island), and according ACLU estimates, the homes of nearly two-thirds of all Americans.  Reasonable distance becomes important where congress grants special search and seizure authority to government officers policing the border, such as warrantless searches of automobiles pursuant to the Immigration and Nationality Act.

Simply residing, or being present within a reasonable distance of the border will not subject your devices to warrantless, suspicionless search.

The ACLU has recently targeted policies adopted by Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE), the agencies responsible for policing the borders, that allow officers to conduct warrantless and suspicionless searches of an individual’s electronic devices.  That authority extends to the files, documents, and other contents located on device hard drives.  According to the ACLU, over 6500 people were subject to suspicionless searches of their electronic devices between 2008 and 2010.  The ACLU is currently litigating two related cases challenging these policies as violations of first amendment free speech protections, and the prohibitions against unreasonable search and seizure of the fourth amendment.  The first case involves Paul Abidor, a dual citizen of the U.S. and France, who was detained while returning to New York from Canada via train.  Abidor was held for several hours, and his laptop was seized for eleven days.  The second cases involves David House, a U.S. Citizen and computer programmer who had his laptop, camera, and USB drive seized and copied by authorities.

Fourth amendment protections against unreasonable search and seizure at international borders have long been accepted as significantly weaker than those enjoyed elsewhere in the country.  The sovereign interests of the United States, such as protecting national security, weigh more heavily at the border, and may offset individual privacy rights in the fourth amendment balance.  Furthermore, reasonable expectations of privacy are reduced at the border.  Concerns regarding the prevention of terrorism, of which electronic communications are often principle evidence, also inform the government’s willingness to invade those interests generally protected by the first and fourth amendments.  Do these considerations justify a policy that allows border agents to arbitrarily target individuals crossing the border with invasive exploration of their digital belongings?  The recently released executive summary of the Civil Rights/Civil Liberties Impact Assessment, drafted by the Department of Homeland Security’s Civil Rights and Civil Liberties (CLRC) Office, argue that they do.  The complete report has not been released, though the ACLU has filed a FOIA request in hopes of obtaining it.

Whether the warrantless, suspicionless search of electronic devices at international borders violates the first or fourth amendments is unclear.  What is clear, however, is that if a “constitutionally free zone” exists, the current electronic device search policies of the CBP and ICE do not extend into it.  The official policy of each agency specifically sets out that such searches may occur only “at the border,” though they do allow for the search of devices belonging to individuals either entering or leaving.  Simply residing, or being present within a reasonable distance of the border will not subject your devices to warrantless, suspicionless search.  Where you choose to travel abroad, however, all bets are off.