Why the Fourth Amendment Doesn’t Extend to Border Crossings

Although U.S. citizens might have an expectation that their property, like laptop computers and other electronics, would be safe from warrantless searches under the Forth Amendment, it has been shown that the protection does not seem as applicable when crossing the border. The government’s justification as to why was recently revealed.

Earlier this year, the Office for Civil Rights and Civil Liberties released an executive summary that detailed the authority to conduct “searches without suspicion or warrant.” But now, through a Freedom of Information Act request, the American Civil Liberties Union is revealing more of the reasoning behind why the Department of Homeland Security believes it can conduct “suspicionless searches” of some electronics coming into the country in their effort to protect national security.

In this Thursday, May 23, 2013 photo, cars from Canada line up to cross into the U.S. in Blaine, Wash. (Photo: AP/Elaine Thompson)

DHS’s Civil Rights/Civil Liberties Impact Assessment for Border Searches of Electronic Devices states that requiring a suspicion threshold “could be operationally harmful without concomitant civil rights/civil liberties benefit” (emphasis added):

First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.

The ACLU called DHS’s reasoning, which it points out is largely redacted in the document, “faulty for a few reasons.”

Brian Hauss, the ACLU’s legal fellow for its Speech, Privacy and Technology Project, wrote that the government has “numerous resources …to prevent the disclosure of sensitive information. He also calls its claim that a border agent with a “hard-to-articulate …hunch” merits a search of content on electronic devices “problematic.”

“While the report cites unspecified anecdotal evidence that wrongdoers are sometimes apprehended based on ‘intuitions,’ it says nothing about the number of innocent people who are subjected to unjustified searches as a result,” Hauss wrote.

He continued:

To be sure, rummaging around through people’s personal papers may well turn up the occasional bad guy, but that is not the only consideration. No doubt law enforcement agents would also find it useful to walk into people’s homes at will, but we don’t allow them to do so because that would intrude on our reasonable expectation of privacy in our homes. And just as we reasonably expect privacy in our homes, so, too, do we expect that border agents will not base their decisions to search through our electronic information on a whim or a hunch.

The report details that there were more than 21 million travelers through all ports of entry in FY2009 and 29 million in FY2010. Of those, 302 travelers were subjected to electronic device searches in 2009 (25 devices were seized/detained) and 383 in 2010 (16 were seized/detained).

(H/T: Ars Technica)