Judge Puts Limits on Electronic Device Searches at the Border

Judge Puts Limits on Electronic Device Searches at the Border November 14, 2019

The courts have long allowed searches, like frisking and luggage searches, at the border that they have not otherwise allowed further than 100 miles from border crossings, but a federal judge just ruled that in order to search cell phones, laptops and other electronic devices, authorities do need some specific reason to suspect criminal activity.

A federal judge ruled Tuesday that border agents can’t search international travelers’ electronic devices without suspecting them of a crime, potentially putting a limit on a growing practice in U.S. ports of entry.

The decision came in a lawsuit brought by civil-liberties activists challenging the U.S. government’s power to search smartphones, laptops and other electronic devices at border crossings.

In a 48-page decision, U.S. District Judge Denise Casper said the Fourth Amendment’s protections against unreasonable searches and seizures require authorities to have at least a reasonable and individualized suspicion of criminal activity. The American Civil Liberties Union, which brought the case, cited examples of agents conducting suspicionless searches of phones containing attorney-client communications, intimate photos and other sensitive records.

However, Judge Casper rejected the ACLU’s argument that border and customs agents need probable cause to believe that a traveler’s device contains evidence of contraband before searching its contents. Probable cause is a higher standard, which is needed for search warrants.

This is similar to the standard used in stopping and searching a vehicle, which is not that the government must show probable cause but that it must at least show a “reasonable suspicion” of illegal activity. It doesn’t meet the stringent standards of the Fourth Amendment, but at least provides some minimal protection against wholesale searches of the devices of anyone who crosses the border. The judge made a distinction between a standard frisk or document check and a search of someone’s electronic devices, including passwords and anything stored in email and social media sites, which often contains a tremendous amount of personal and private data, from financial information to communications with loved ones. It’s at least a step in the right direction, though it doesn’t go nearly far enough.

You can read the full ruling here.

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