The Fourth Amendment prohibits unreasonable searches and seizures and requires a warrant supported by probable cause. However, when entering the United States, United States Customs and Border Protection (CBP) or US Department of Homeland Security (DHS) officials may stop you and search any information on your electronic devices, including laptop computers and personal mobile phones.
For example, Gray Robinson reports the case of a graduate student traveling entering the US from Canada. Pascal Abidor, a student at McGill University in Montreal, has been researching his PhD in the modern history of Shiites of Lebanon. The CPB officer ordered Abidor to surrender his laptop and discovered pictures of rallies of Hamas and Hezbollah, both of which were designated by the U.S. Department of State as terrorist organizations. CPB detained and questioned Abidor for five hours and did not return his laptop to him until eleven days later.
In court, Abidor and plaintiffs sought a declaratory junction against CBP and Immigration and Customs Enforcement (ICE), arguing that the inspection policies regarding electronic devices carried by travelers across an international border into the US was a violation of the First and Fourth Amendments to the US Constitution. Senior US District Court Judge Edward Korman dismissed the lawsuit on the grounds that it is a rare occurrence and the government does not need a reason to search at a border checkpoint. However, Catherine Crump, the ACLU attorney who argued the case, said the ruling “allows the government to conduct intrusive searches of Americans’ laptops and other electronics at the border without any suspicion that those devices contain evidence of wrongdoing.”
“Suspicionless searches of devices containing vast amounts of personal information cannot meet the standard set by the Fourth Amendment, which prohibits unreasonable searches and seizures. Unfortunately, these searches are part of a broader pattern of aggressive government surveillance that collects information on too many innocent people, under lax standards, and without adequate oversight.” Crump said.
The government’s electronic-device search policy was instituted by the George W. Bush administration in 2008 and has been maintained under the Obama administration.
Gray Robinson, “U.S. Customs Can Examine The Contents of Your Laptop, Mobile Phone, and Any Other Electronic or Digital Devices Whenever Entering the United States,” Customs and International Trade Law Blog, January 5, 2014, http://www.grcustomslaw.com/2014/01/us-customs-can-examine-contents-of-your.html.
Noel Brinkerhoff, “Federal Judge Rules that Border Patrol Does Not Need Reasonable Suspicion to Confiscate Laptops and Phones,” AllGov, January 2, 2014, http://www.allgov.com/news/top-stories/federal-judge-rules-that-border-patrol-does-not-need-reasonable-suspicion-to-confiscate-laptops-and-phones-140102?news=852061.
Student researcher: Vanessa A. Pedro, Sonoma State University
Faculty Evaluator: Peter Phillips, Sonoma State University