Law Enforcement Uses Border Search Exception as 4th Amendment Loophole

by | Dec 11, 2016

Law Enforcement Uses Border Search Exception as 4th Amendment Loophole

by | Dec 11, 2016

In recent months, U.S. Customs and Border Protection agents have sought access to private data on the cell phones of two journalists. Such incidents are offensive because they threaten the independence of the press and pose specific risks to confidential sources. This government overreach also highlights how weak legal protections at the border for digital devices threatens the privacy of all travelers to and from the U.S., including Americans.

In October 2016, CBP airport agents denied Canadian photojournalist Ed Ou entry into the country, after detaining him for over six hours and seizing his three cell phones. According to Mr. Ou’s ACLU attorney, “When the officers returned the phones to him several hours later, it was evident that their SIM cards had been temporarily removed because tamper tape covering the cards had been destroyed or altered.” Similarly, in July, CBP airport agents detained U.S. citizen and Wall Street Journal reporter Maria Abi-Habib for an hour and a half. When they asked for her cell phones, she refused and referred them to the newspaper’s lawyers. Fortunately, the agents eventually released her without seizing or searching her devices.

Regular travelers are also at risk. We wrote an amicus brief in the case of Ali Saboonchi, a dual citizen of the U.S. and Iran whose cell phones and flash drive were seized at the U.S.-Canadian border after returning from a vacation to Niagara Falls. Mr. Saboonchi had been under investigation for violating the trade embargo with Iran and federal agents took advantage of his presence at the border to invoke the border search exception to the Fourth Amendment.

The Fourth Amendment generally requires the government to obtain a warrant from a judge, based on probable cause that evidence of a crime will be found, before seizing and searching personal property. Thus, if federal agents had wanted to confiscate and rifle through Mr. Saboonchi’s digital devices while he was at home in Maryland, they would have needed to obtain a probable cause warrant to do so.

Decades ago, as we discussed in our brief, the Supreme Court created the border search exception to the Fourth Amendment’s warrant requirement, permitting government agents to search travelers’ luggage, vehicles or persons without a warrant and almost always without any individualized suspicion of wrongdoing.

Read the rest at the Electronic Frontier Foundation.

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