The fourth amendment is supposed to protect Americans against unreasonable searches and seizures. You may think that law enforcement officials always need a search warrant, or at least probable cause, to confiscate and look through items like electronic devices. But if you live, or just happen to be, within 100 miles of the American border, you would be wrong.
Assisted by the ACLU, Pascal Abidor brought a lawsuit against the Department of Homeland Security, Customs and Border Protection, and Immigration and Customs Enforcement, after his laptop was searched without probable cause after he returned from an overseas trip to Lebanon.
While on a train from Canada to New York, Abidor was approached. Officials told him to enter his password on the computer, and subsequently saw pictures from Hezbollah rallies in the Middle East. Abidor claims they were for educational purposes (he is an Islamic Studies student), but the officers proceeded to detain him for several hours, further searching the computer and questioning him. He was held for several hours and eventually released without being charged, but his laptop was not returned to him for over 10 days.
The government has historically been able to conduct searches for just about any reason if they take place at, or around, the US border. But this case, and others like it, has sparked a debate about 21st century searches: ones that involve electronic devices.
In this case, the ACLU contended that broadly allowing the government to search electronic devices at the border could lead to unfairly targeting individuals who may not be breaking the law, or using the “buffer zone” (the 100-mile radius in which these kinds of searches are allowed) around the US border, in which these searches without probable cause are allowed, as an excuse to search random persons.
But Judge Korman, who ruled on the case on December 31, 2013, thought otherwise. He noted that searches at the border have been common, as well as legally allowed, to take place at the border historically. It only makes sense, then, to extend that precedent to electronic devices like laptops in the 21st century, which were not previously accounted for only because they did not exist.
The Supreme Court has not ruled on the issue of pursuing electronic devices specifically, but there are two cases that are often cited in support of the government’s border-searching ability. In 2005, the 4th circuit Court of Appeals decided in U.S. v. Ickes that a search of a laptop in a man’s car, on which child pornography was discovered, was indeed legal.
In 2008, the 9th Circuit Court of Appeals filed a similar ruling in USA v. Arnold, which upheld the practice allowing US Customs and Border Control agents to inspect computers without probable cause.
So with this historical precedent, what is the confusion over these searches?
One problem might rest with the fact there is so much information stored on things like laptops and cell phones. Where historically searches were limited to physical items, searching electronic devices presents a difficulty in that they have virtually no boundaries. While some things, like files and pictures, are contained on the physical device, others, like email and social media sites, are connected to the Internet. Theoretically, a person’s contacts, connections, and other personal information could all be searched at any airport or border inspection, without probable cause. This amount of information has never been accessible to agents before.
Additionally, some believe that until the Supreme Court has reviewed and ruled on the practice, we have no way of knowing if it will be upheld Constitutionally. But there is no guarantee the Supreme Court will ever hear the matter, so for now, only rulings that matter are those handed down by the various appellate courts.
While proponents of these border searches point to the security benefits attached to them, it is important to question whether the information gained from these searches outweighs the personal liberty and security that has been lost by them. We must take into account how an age filled with technology and near unlimited information accessible on mobile electronic devices may be a different ball game than searches and seizures at borders in the past.
[Huffington Post] [RT] [U.S. v. Ickes] [U.S. v. Arnold] [Abidor v. Napolitano] [ACLU]
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Molly Hogan (@molly_hogan13)
Featured image courtesy of [Office of Public Affairs/Shane T. McCoy/US Marshals via Flickr]