{"id":1498,"date":"2013-02-27T16:02:25","date_gmt":"2013-02-27T16:02:25","guid":{"rendered":"http:\/\/ncjolt.org\/?p=1498"},"modified":"2020-10-15T14:28:38","modified_gmt":"2020-10-15T14:28:38","slug":"suspicionless-search-of-electronic-devices-at-u-s-borders-is-your-information-afe-in-the-constitution-free-zone","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/suspicionless-search-of-electronic-devices-at-u-s-borders-is-your-information-afe-in-the-constitution-free-zone\/","title":{"rendered":"Suspicionless Search of Electronic Devices at U.S. Borders \u2013 Is Your Information Safe in the Constitution Free Zone?"},"content":{"rendered":"

Tuesday, February 26, 2013, by Kenneth Jennings
\nThe American Civil Liberties Union (ACLU) claims that their now exists a \u201cconstitution free zone,\u201d<\/a> wrapping the contours of the United States.\u00a0 Within this zone, the ACLU suggests, well-established constitutional guarantees of free speech, and protections against unreasonable search and seizure no longer apply.\u00a0 The basis of this claim lies in the government\u2019s definition of the area within a reasonable distance of the U.S. border<\/a> as a span of 100 miles.\u00a0 That region wholly encompasses ten states (Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey and Rhode Island), and according ACLU estimates, the homes of nearly two-thirds of all Americans.\u00a0 Reasonable distance becomes important where congress grants special search and seizure authority to government officers policing the border, such as warrantless searches of automobiles pursuant to the Immigration and Nationality Act<\/a>.<\/p>\n

Simply residing, or being present within a reasonable distance of the border will not subject your devices to warrantless, suspicionless search.<\/p><\/blockquote>\n

The ACLU has recently targeted policies adopted by Customs and Border Protection (CBP)<\/a> and Immigrations and Customs Enforcement (ICE)<\/a>, the agencies responsible for policing the borders, that allow officers to conduct warrantless and suspicionless searches of an individual\u2019s electronic devices.\u00a0 That authority extends to the files, documents, and other contents located on device hard drives.\u00a0 According to the ACLU, over 6500 people were subject to suspicionless searches of their electronic devices between 2008 and 2010.\u00a0 The ACLU is currently litigating two related cases challenging these policies as violations of first amendment free speech protections, and the prohibitions against unreasonable search and seizure of the fourth amendment.\u00a0 The first case involves Paul Abidor, a dual citizen of the U.S. and France, who was detained while returning to New York from Canada via train.\u00a0 Abidor was held for several hours, and his laptop was seized for eleven days.\u00a0 The second cases involves David House, a U.S. Citizen and computer programmer who had his laptop, camera, and USB drive seized and copied by authorities.
\nFourth amendment protections against unreasonable search and seizure at international borders have long been accepted as significantly weaker than those enjoyed elsewhere in the country.\u00a0 The sovereign interests of the United States, such as protecting national security, weigh more heavily at the border, and may offset individual privacy rights in the fourth amendment balance.\u00a0 Furthermore, reasonable expectations of privacy are reduced at the border.\u00a0 Concerns regarding the prevention of terrorism, of which electronic communications are often principle evidence, also inform the government\u2019s willingness to invade those interests generally protected by the first and fourth amendments.\u00a0 Do these considerations justify a policy that allows border agents to arbitrarily target individuals crossing the border with invasive exploration of their digital belongings?\u00a0 The recently released executive summary<\/a> of the Civil Rights\/Civil Liberties Impact Assessment, drafted by the Department of Homeland Security\u2019s Civil Rights and Civil Liberties (CLRC) Office, argue that they do.\u00a0 The complete report has not been released, though the ACLU has filed a FOIA request in hopes of obtaining it.
\nWhether the warrantless, suspicionless search of electronic devices at international borders violates the first or fourth amendments is unclear.\u00a0 What is clear, however, is that if a \u201cconstitutionally free zone\u201d exists, the current electronic device search policies of the CBP and ICE do not extend into it.\u00a0 The official policy of each agency specifically sets out that such searches may occur only \u201cat the border,\u201d though they do allow for the search of devices belonging to individuals either entering or leaving.\u00a0 Simply residing, or being present within a reasonable distance of the border will not subject your devices to warrantless, suspicionless search.\u00a0 Where you choose to travel abroad, however, all bets are off.<\/p>\n","protected":false},"excerpt":{"rendered":"

Tuesday, February 26, 2013, by Kenneth Jennings The American Civil Liberties Union (ACLU) claims that their now exists a \u201cconstitution free zone,\u201d wrapping the contours of the United States.\u00a0 Within this zone, the ACLU suggests, well-established constitutional guarantees of free speech, and protections against unreasonable search and seizure no longer apply.\u00a0 The basis of this …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1498"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=1498"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1498\/revisions"}],"predecessor-version":[{"id":7621,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1498\/revisions\/7621"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=1498"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=1498"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=1498"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}