Forced Searches of Travelers’ Belongings and Digital Devices at the Border

Border Patrol

Warrantless searches by customs officers (the U.S. Coast Guard, CBP, Border Patrol, and ICE) at ports of entry, including airports, have been permitted as an exception to the Fourth Amendment protections against unreasonable searches and seizures.

The Supreme Court has repeatedly enumerated this exception to the requirement that searches and seizures require a warrant for the discrete purpose of enforcing immigration and customs laws with the rationale that these searches serve a public benefit.

Moreover, the Court has determined time and time again that the right to conduct searches without probable cause and without a warrant at the border is rooted in the power to control who and what may enter the country. As such, fewer privacy protections are afforded at the border.

Routine Searches vs. Invasion of Privacy

The Supreme Court envisioned these searches limited to what the customs officer could see in plain sight. Now, at a time when an individual’s most private information is stored on digital devices, these decisions are an anachronism. Based upon the nature of the information stored on digital devices – including personal and business e-mails, videos, contact information, call logs, photos voicemails, etc. – warrantless searches of electronics appears to run afoul of the constitutional protections guaranteed under the First and Fourth Amendments.

Current Luggage Search Laws

It is up to debate about the laws that apply to luggage searches at airports and whether they should apply to digital devices that contain huge amounts of personal data. The reach of searches conducted at airports and ports of entry by customs officers has been a source of frequent debate given the ubiquity of cell phones and laptops. The kind of information that is now stored on these digital devices now amounts to rummaging through someone’s private dresser.

The advent of increased storage capacity and the ability to store large files in the cloud, accessible through small digital devices like cell phones, has meant that the scope of what customs agents consider permissible searches has widened beyond the narrow purpose of enforcing immigration and customs laws. The laws that apply to luggage should not be misapplied to permit access to a breadth of private information that amounts to an unreasonable invasion of the individual’s privacy interests.

Ethnic and Religious Profiling and Digital Devices Searches

The reality is that permitting warrantless searches of digital devices permits the profiling of individuals from certain ethnic groups and religions. The number of pretextual secondary inspection searches of devices disproportionately affects those that arise suspicion at the border, including travelers from the Middle East and the Muslim faith. Belonging to a certain culture or faith should not justify such an invasive search without a warrant.

Every private thought, moment, comment, and even past locations can be revealed by searching an individual’s digital devices. If the true purpose of the exception to the Fourth Amendment protections against unreasonable searches and seizures at the border is to control who has permission to enter the U.S. and what items may be brought into the U.S. the search should be limited to the search of the person and their possessions, not their digital footprint. The proper venue for a more invasive search is a criminal investigation, not a return flight from visiting grandma.

Previous Digital Search Cases

My clients who have had their digital devices searched were often held and questioned for many hours at secondary inspection at the airport before being permitted to enter the U.S. I have a few clients who were intimidated by customs officers and questioned in an offensive manner and others who in the hours they were detained were not permitted to communicate with family members and not offered anything to eat as they waited hours for a determination on their eligibility to enter the U.S.

I have one Pakistani client whose cellular phone was never returned to him by ICE even after he was admitted. He made several requests to have his cell phone returned, but his requests were ignored. He lost countless pictures of family events and personal professional contacts.

Adjusting Current Legislation

Continuing to permit the search of private information stored on digital devices and the confiscation of electronics by customs officers is a slippery slope towards eroding the protections individuals have under the Constitution. Customs agents should not be performing what is squarely within the scope of criminal investigations.