By Lauren Guicheteau
There are no protections against warrantless and suspicionless searches of electronic devises at the United States’ borders because these searches are not civil rights violations according to the Office for Civil Rights and Civil Liberties (CRCL) for the Department of Homeland Security. The CRCL recently performed an Impact Assessment on the Department’s policy for border searches of electronic devices and released the executive summary of its findings. CRCL examined two Department of Homeland Security directives issued in 2009 that govern policies and procedures for searching, reviewing, retaining, and sharing information contained in electronic devices. This executive summary determined that U.S. Customs and Border Protection along with U.S. Immigration and Customs Enforcement have the constitutional and statutory authority to search travelers, baggage, and containers without a warrant or reasonable suspicion, and electronic devices such as phones or computers are no exception.
The CRCL concluded that these border policies do not violate the First Amendment or the Fourth Amendment. The policies comply with the Fourth Amendment, which protects against unreasonable searches and seizures, because “[t]he overall authority to conduct border searches without suspicion or warrant is clear and longstanding, and courts have not treated searches of electronic devices any differently than searches of other objects.” The CRCL also found that border searches of computers do not violate travelers’ First Amendment rights. They rejected the idea that a heightened level of suspicion should be required before searching computers in order to avoid chilling free speech.
While this assessment is controversial, federal case law supports the CRCL’s conclusions. In United States v. Ickes, the Fourth Circuit Court of Appeals held that there is no First Amendment exception to the border search doctrine for expressive materials. The court justified the border search doctrine because the sovereign has a right to protect itself. Contextualizing its decision in the modern world the court explained that “national security interests may require uncovering terrorist communications, which are inherently ‘expressive.’” Fourth Amendment concerns surrounding the search of electronic devises were address by the Ninth Circuit Court of Appeals, in United States v. Arnold, which explicitly held that reasonable suspicion is not required to conduct a warrantless search of a laptop at the border. The court held that searches of electronic devices are equivalent to searches of property, rejecting the defendant’s argument that searching files on a laptop computer intrudes upon a traveler’s privacy interests and dignity to the same degree as searching a traveler’s body. Therefore, searches of electronic materials at the border are only limited in that the search may not (1) cause exceptional damage to the property, and (2) be conducted in “a particularly offensive manner.” Analyzing these exceptions, the Ninth Circuit explained that searching through personal electronic information does not constitute an “offensive search.”
However, many people see electronic devises as unique in their vast storage capacity of personal information and the ability to track its user’s preferences and habits, which should distinguish them from other types of baggage. The CRCL’s current assessment only furthers the belief in a growing “Constitution Free Zone” around the U.S. border. The ACLU currently has two lawsuits pending before federal courts, which challenge the current border search policy by asserting that laptop searches are so invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Additionally, the ACLU has filed a request under the Freedom of Information Act for the full Impact Assessment Report. The contentious nature of the CRCL executive summary highlights the important civil rights issues raised by technological advances and how these advances continue to shape how courts view and interpret the Constitution.
Washington Journal of Law, Technology & Arts 