Fault Lines (March 7, 2017)– In the cacophonous debates about President Trump’s travel bans and his overt hostility to immigrants and refugees, civil libertarians have been quick to recount horror stories about Homeland Security agents doing really terrible things to people trying to come into the U.S. For example, a U.S.-born NASA engineer of Indian descent made news in January after Customs officers detained him until he turned over the password for his government-issued smartphone so that officers could search through it.
Recently Oregon Senator Ron Wyden penned a letter to the Secretary for the Department of Homeland Security calling this kind of thing “simply unacceptable,” “deeply troubling” and a violation of the “privacy and civil liberties of travelers.” While the current political climate has certainly placed DHS under the microscope, it is doubtful that this is really a new problem.
DHS’ official position is, “In conducting border searches, CBP officers strictly adhere to all constitutional and statutory requirements, including those that are applicable to privileged, personal, or business confidential information.” At the same time, however, DHS also has an official policy of conducting suspicionless searches of people at the border, including their electronic devices.
So what the hell? What are your rights?
Our nation’s ability to protect its borders and ensure that nothing undesirable manages to squeeze through has traditionally meant that the government is able to do pretty much whatever it wants when deciding whether to allow you entry. In legal terms, the Supreme Court has explained that “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” and as a result searches of people and their effects are presumptively permissible, even without particularized suspicion. That’s why, for example, when you drive back from an eventful Saturday afternoon in Juarez there’s nothing unlawful about a Customs agent arbitrarily demanding that you open your trunk at the border.
Things get a bit more complex though, when the nature of the search gets really extensive. The “border exception” to the Constitution isn’t really an exception. It is instead a judicial presumption that officers at the border have a reasonable basis for conducting searches and seizures at the border. But if the search or seizure goes beyond a routine border encounter, it may become unreasonable.
That means, for example, that officers can’t search the contents of your computer without some reason. The same goes for “3.5 inch computer diskettes” (remember those?), film, and of course, smartphones. That’s not to say the normal rules apply, and an officer needs a warrant. Instead, at the border, the most an officer needs is reasonable suspicion that crime is afoot. This is the lowest of the low as far as standards of suspicion are concerned, and in practice, just means that the officer has to be smart enough to come up with any legitimate explanation for what he or she is up to.
Of course, if you consent to a search, then no matter what your civil liberties may be, you have abandoned them. So if a Customs officer asks to look in your smartphone and you agree, then you have given up any right to complain later.
Further, while the government can’t force you to consent to a search (because that’s not consent), it can give you strong incentives to consent and disincentives to stand on principle. There’s nothing wrong, for example, with giving you a choice between consenting to a search of your smartphone or spending the night in a holding cell while they “investigate” your entry documents.
So, as with all civil liberties, your right to privacy in your electronic devices upon entry to the country depends mostly on how much you care to pay to stand on principle.
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So, it’s another form of a trial tax? Lovely… (/s)
Not all of these “border searches” are happening at the border. Some are well inside the U.S. and involve people simply traveling within the country.