Anyone who has travelled by airplane over the last decade knows one thing to be true: security can be a drag. But you may not know that customs agents may search more than just your luggage at the border. In the wake of 9/11, the Department of Homeland Security implemented a policy which allowed it to search the electronic devices of some travelers without a warrant. While searches of electronic devices at the border are uncommon, they have increased in recent years. At the current pace, these searches could grow by 33% in 2017. As these warrantless searches increase, so has the national debate over whether they are constitutional.

The Department of Homeland Security, and proponents of it’s border search policy, argue that these searches are an invaluable tool, used to thwart terrorist activity and other illegal acts at the border. Joseph B. Maher, former acting general counsel for DHS, wrote an op-ed, in which he states, “[j]ust as Customs is charged with inspecting luggage, vehicles and cargo containers upon arrival to the USA, there are circumstances in this digital age when we must inspect an electronic device for violations of the law”. However, the ACLU, along with several other organizations, believes that the “digital age” Mr. Maher speaks of actually supports the conclusion that warrantless searches of electronic devices are unconstitutional. In the ACLU’s view, our reliance on these devices explains exactly why searching a cell phone is not akin to searching ones luggage at the border. Cell phones contain a significant amount of personal information, including photos, professional and personal correspondence, search history, information about recent travel, etc.  The personal nature of ones electronic footprint that lead the ACLU and the Electronic Frontier Foundation to file suit one month ago on behalf of eleven people who had their devices searched, or in some cases confiscated, without a warrant.

While the ACLU’s suit faces an uphill battle against ever expanding exceptions to the fourth amendment under the border search doctrine, they may have an unlikely ally in the form of  the Chief Justice of the United States Supreme Court. Chief Justice Roberts authored the majority opinion in a 2014 case Riley v. California. In Riley, the court was asked whether cell phones could lawfully be searched under the “search incident to arrest exception” to the warrant presumption under the fourth amendment. The court unanimously held that it was not necessary to search an arrestees cell phone to either preserve evidence or to protect the arresting officers, which are the two primary justifications for warrantless searches incident to arrest. Most importantly for the ACLU, the Chief Justice’s opinion made it clear that individuals have a substantial privacy interest in their electronic devices, stating, “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought”. In arguing that warrantless searches of electronic devices are unconstitutional, the ACLU will undoubtedly rely on the Supreme Courts emphasis on an individual’s privacy interest in personal electronic devices.

While it will take time for the ACLU’s case to wind its way through the courts, persons reentering the country after traveling abroad can take steps to protect their digital devices. As many others have noted, it is best to be open and honest with customs agents if stopped at the border, while protecting  devices as best as possible.

Anderson Kemp

 

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