Posted by Gary Burger on February 27, 2017 in Law
Laws at the Border
I’m going to Mexico with my family for spring break in a few weeks and we are ready for our phones and computers to be searched. I always assume my luggage is fair game, but I’ve been reading about U.S. Citizens being detained and ordered to open phones.
Apparently Americans have to give broad access to phone and computer content (emails, texts and social media) when leaving or returning to the U.S. On Saturday, Muhammad Ali Jr. was detained coming back to the country (and asked whether he was a Muslim). Learn more here. A U.S. born NASA scientist had his work phone seized at the airport.
Can they do that? Yes. Border agents have broad authority to search without cause, and even more with a little cause. Despite the recent attention – its not just our current president – 4,444 phones were searched at borders in 2015.
The Fourth Amendment guarantees citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But searches at our international borders by customs officials without probable cause and without a warrant are deemed “reasonable” by courts.
The border search doctrine also applies to stops and searches at the functional equivalent of a border (airplane or boat) and applies equally to searches of persons and property exiting or entering America. A U.S. Citizen artist was recently detained for three hours in Arizona for sketching. An airport at which an international flight touches down is a border under the law.
Searches and seizures of computers or phones at airports have been found to be constitutionally reasonable in many instances, often as the subject of a routine border search not requiring reasonable suspicion of criminal activity prior to acting.
And such a warrantless search does not violate the First Amendment’s guarantee of freedom of speech. The government’s power is at its zenith at borders, so ten cuidado (be careful).
If you don’t surrender your passwords, you can be detained and they can copy your phone or hard drive. In one case – taking a hard drive 150 miles from a border to be copied was not unreasonable. Click for the following opinions: U.S. v. Bunty, 617 F. Supp. 2d 359 (E.D. Pa. 2008); U.S. v. Arnold, 533 F.3d 1003 (9th Cir. 2008); People v. Endacott, 164 Cal. App. 4th 1346, 79 Cal. Rptr. 3d 907 (2d Dist. 2008); United States v. Kim, 2015 WL 2148070 (D.D.C. 2015).
It seems unfair to not have these constitutional protections for citizens at our borders. Especially when this power is not judiciously used.
I likely look too white to be vigorously searched. And if they do make me open my phone – they’ll only get pictures of kids and dogs.