us-constitution-free-zone

12/31/2013

David Kravets/WIRED/ACLU:

A federal judge today upheld a President Barack Obama administration policy allowing authorities along the U.S. border to search and seize laptops, smartphones and other electronic devices for any reason.

The decision by U.S. District Judge Edward Korman in New York comes as laptops, and now smartphones, have become virtual extensions of ourselves, housing everything from email to instant-message chats to our papers and effects.

The American Civil Liberties Union brought the challenge nearly three years ago, claiming U.S. border officials should have reasonable suspicion to search gadgets along the border because of the data they store. But Judge Korman said the so-called "border exemption," in which people can be searched for no reason at all along the border, continues to apply in the digital age.

Alarmingly, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation's actual border.

The judge said it "would be foolish, if not irresponsible" to store sensitive information on electronic devices while traveling internationally.

"We're disappointed in today's decision, which allows the government to conduct intrusive searches of Americans' laptops and other electronics at the border without any suspicion that those devices contain evidence of wrongdoing," said Catherine Crump, the American Civil Liberties Union attorney who argued the case in July 2011. "Suspicionless searches of devices containing vast amounts of personal information cannot meet the standard set by the Fourth Amendment, which prohibits unreasonable searches and seizures. Unfortunately, these searches are part of a broader pattern of aggressive government surveillance that collects information on too many innocent people, under lax standards, and without adequate oversight."

In June, in response to an ACLU Freedom of Information Act request, DHS released its December 2011 Civil Rights/Civil Liberties Impact Assessment of its electronics search policy, concluding that suspicionless searches do not violate the First or Fourth Amendments. The report said that a reasonable suspicion standard is inadvisable because it could lead to litigation and the forced divulgence of national security information, and would prevent border officers from acting on inchoate "hunches."

The President George W. Bush administration first announced the suspicionless, electronics search rules in 2008. The Obama administration followed up with virtually the same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data.