For years, Unites States borders have been a legal no-man’s-land where laws and rights citizens take for granted don’t always apply. Case in point is the search and seizure of electronic devices. Now, a federal judge has ruled that border agents must have reasonable suspicion to search travelers’ devices.
At the heart of the issue is the rule-book that U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) have been operating from. In 1976, and again in 2004, the Supreme Court ruled that individuals were entitled to less Fourth Amendment protections at the border because of the government’s responsibility to protect said borders. CBP, and more recently ICE, have interpreted those rulings to mean that any electronic device could be searched without reasonable suspicion.
The news has reported on case after case of American citizens having their electronic devices confiscated, searched and their contents downloaded and analyzed. While individuals were free to refuse, CBP would often respond by making life difficult. This often took the form of detaining the person for hours while trying to pressure them to turn over their device. Even professionals with sensitive information, such as doctors or lawyers, were not immune from such treatment.
According to U.S. District Judge Denise Casper, however, the CBP’s actions violate the Fourth Amendment. “In light of this record, case law, and in conjunction with the lack of meaningful difference between basic and advanced searches, the Court concludes that agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the ‘basic’ searches and ‘advanced’ searches as now defined by the CBP and ICE policies,” Judge Casper said in her ruing. “This requirement reflects both the important privacy interests involved in searching electronic devices and the Defendant’s governmental interests at the border.”
This should be welcome news to travelers and privacy experts alike.