When crossing the international border, you do so with your privacy at risk — at least that seems to be the message in a ruling from a federal judge in the Eastern District of New York, which maintained data contained on personal electronic devices is fair game at the border.
U.S. District Judge Edward R. Korman ruled Tuesday in a 32-page opinion that plaintiffs who were seeking protection from the government’s right to search electronic devices at the border lacked standing because the searches — conducted randomly and not necessarily with probable case to suspect wrongdoing — only happen occasionally.
“There is not a substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion,” Judge Korman said of the searches, which occur about 15 times a day across the lengths of the northern and southern borders, according to Customs and Border Protection, although Department of Homeland Security documents question the low figure.
But what is even more alarming than the notion that a Border Patrol agent’s self-restraint serves as justification for their reasonless search powers is that the ruling largely maintains the status quo at our nation’s borders. The courts have long held that searches along the border are exempt from Fourth Amendment protections simply because they take place at the border.
And while we understand the difficulties in securing the long stretches of our national borders against all manner of trafficking, be it of drugs, people or terrorism, the broad brush allowed to Customs and Border Protection creates worrisome room for abuse and use as a tool of intimidation.
Readers have to look no further for examples than an account first detailed by the New York Times in September. The report focused on David House — a fundraiser for Wikileaker Bradley Manning’s legal defense — who had his laptop, camera, thumb drive and cellphone seized on a 2010 return trip from Mexico.
But, it was the dragnet described by the Times to catch Mr. House up in the Fourth Amendment’s apparent loophole that may be more frightening than the actual seizure. According to government documents obtained by Mr. House’s defense team, Immigration and Customs Enforcement set up a travel alert for Mr. House, citing a need to question him over leaks of classified material. When Mr. House booked a flight to Los Cabos in Mexico, the booking was flagged by the airline, forwarded on to Homeland Security, and Customs agents were there to meet him on his return.
After his personal electronics were seized, and 26,000 documents searched, the Times reported the items were returned and “no data was found that constituted evidence of a crime.”
But the incident, seemingly free of reasonable cause for border enforcement, no doubt had a chilling effect on Mr. House and his ability to travel freely. And it is the cases like this, despite the questionable rarity of the reasonless searches, which make such wide policing powers to trample fundamental constitutional protections unbecoming a free society and must be curtailed.
— From the Orange County Register