A recent internal review of the Department of Homeland Security’s procedure for warrantless and suspicionless search and seizure of mobile phones and laptops near the Nation’s borders reveals that the 4th Amendment is completely dead.
In 2009 DHS determined that it had the right to seize and review the contents of personal electronic devices, including mobile phones, portable computers and data discs, without the need to cite any reasonable suspicion of criminal activity.
“Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” DHS Secretary Janet Napolitano said in defense of the unConstitutional policy in 2009. “The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”
Amid increasing pressure from civil liberties groups throughout the Nation for more information about how DHS argues the Constitutionality of its warrantless searches, the agency recently quietly released a Civil Rights and Civil Liberties Impact Assessment of the searches.
From the report:
The overall authority to conduct border searches without suspicion or warrant is clear and long-standing, and courts have not treated searches of electronic devices any differently than searches of other objects. We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits. However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012.
The agency argues that border protection is a higher priority than Constitutional guarantees and that the warrantless searches only take place near border crossings. But, as has been the case with immigration checkpoints in border States, it’s conceivable that the practice could be justified hundreds of miles from the border.
The American Civil Liberties Union, last week, filed a Freedom of Information Act to better understand how the government justifies its ability to conduct warrantless searches of technological devices.