By: Amanda Levendowski
In January, the Department of Homeland Security (DHS) quietly published its long-awaited “Civil Rights/Civil Liberties Impact Assessment” of border searches of electronic devices. The actual impact may be an equally quiet erosion of Fourth Amendment rights.
As of 2009, DHS is lawfully allowed to both search and seize devices like smart phones, laptop computers, and other data storage devices (including disks and flash drives) at the border without reasonable suspicion that the devices were involved in a crime. Then-Secretary Napolitano explained that these searches struck “the balance between respecting the civil liberties of travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”
The Impact Assessment executive summary is three pages long, and its treatment of the Fourth Amendment amounts to fewer than ten lines of text. The summary concludes that “current border policy searches comply with the Fourth Amendment,” and that “imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.” The executive summary points to “longstanding constitutional authority” permitting warrantless, suspicionless searches at the border, that authority being directives issued by Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP). While agency directives are persuasive, the summary relies on these directives as if agencies have the power to abridge Fourth Amendment rights.
As American Civil Liberties Union staff attorney Katie Hass explains, the summary “draws the highly questionable conclusion that the border search policy does not violate our Fourth Amendment right to privacy,” but fails to “explain any of the evidence or reasoning its conclusions are based on.” The ACLU has filed a FOIA request seeking disclosure of the entire assessment, as well as records and data used to compile the report, but no additional information has yet been disclosed.
The DHS executive summary effects many more individuals than just those crossing into Canada or Mexico for holiday. According to 8 CFR § 287.1, the “border” extends 100 miles inland of any external boundary. The government’s definition of a border subjects more than 190 Americans to the possibility of warrantless, suspicionless searches of electronic devices, and more than 6,500 people had their electronic devices searched at the border since 2008.
Just after the DHS executive summary was released, the Ninth Circuit sitting en banc heralded United States v. Cotterman as a “watershed” case. Judge McKeown acknowledged that when American citizens travel now, we carry all manner of electronic devices, from company Blackberries and laptops to personal e-readers and iPhones. Any one of these devices reveals more sensitive, personal information than other items that may have been subject to border searches in the past, and the court noted that a persons “digital life ought not be hijacked simply by crossing a border.” Because of the unique nature of electronic devices, the Ninth Circuit determined that “reasonable suspicion” is required for border searches. Cotterman is not the godsend case that many privacy advocates hoped for: the reasonable suspicion standard is only applicable to “forensic examinations,” only evocable along portions of the Mexico-US and US-Canada border, and the facts that established reasonable suspicion were frighteningly thin, Cotterman may be a step in the right direction, but the path towards protecting Fourth Amendment rights at the border remains a long one.