Concerns over privacy in the digital age have reached a new front at border ports of entry. A report by The Constitution Project (TCP), a bipartisan think tank in Washington D.C., recommends the Department of Homeland Security make changes to policies and procedures regarding the search and seizure of electronic devices during border inspections.
TCP’s report raises concerns about how agents handle the search of electronic devices such as laptops, tablets, smart phones and even mp3 players. Currently, the search of electronic devices can be made without reasonable suspicion or a warrant.
Inspections at border crossings, airports and cruise-ship terminals have historically been given exemption from the Fourth Amendment’s basic requirements that searches and seizures be conducted reasonably, and pursuant to a warrant based on probable cause. For example, when entering the United States through a port of entry like San Ysidro, your car is subject to search without the need for a warrant. The same is true for luggage in an international airport terminal.
But should your personal laptop computer or smart phone be subject to the same search? TCP is concerned that in a digital age, where people carry more personal information in their electronic devices, they may be subjected to searches that would normally require that Fourth Amendment standards be met.
Sharon Bradford Franklin of The Constitution Project noted that in the past, personal files and information were kept at home, where authorities could not search without a warrant. Now, Bradford said, people could unwittingly and unwillingly forced to allow access to such information during border inspections, where reasonable suspicion, probable cause and warrants are not currently required.
Personal electronic devices like iPhones and Blackberries can contain more information than the average file cabinet at home. Everything from banking information and privileged work files, to family photos and address books are currently subject to search and seizure during border inspections.
The report by TCP also raises concerns about where, when and for how long devices can be searched. Bradford said government agents are not limited regarding how long a subject’s personal device can be kept. The report cites policies that allow the period of confiscation to be extended by “supervisory approval” depending on the amount of data that has to be screened on the device. Also, the device can be searched without the owner present “at a location removed from the initial border crossing and at a time remote from the original border crossing.”
The Constitution Project wants this to stop. TCP said there must exist a reasonable suspicion that the device contains illegal material, or evidence of illegal conduct. For example, TCP said, it should be permitted that the device be checked to see if it works and does not contain a bomb. If the agent sees evidence of illegal activity, like child pornography, he has probable cause to search the device's data.
Another reasonable suspicion would be if the subject appears on a terrorist or criminal watch-list. TCP also wants the changes in order to deter racial and religious discrimination and profiling.
Responding to the report, Customs and Border Patrol simply stated: “DHS/CBP has the responsibility to search persons and items prior to admissibility into the U.S. Keeping Americans safe and enforcing our nation’s laws in an increasingly digital world depends on our ability to lawfully screen all materials — electronic or otherwise — entering the United States.”
CBP also said that less than 1 percent of travelers entering the country are subject to laptop computer searches. On a busy day, the San Ysidro Port of Entry processes up to 90,000 people.
