Can Homeland Security Really Search Any Electronic Device For Any Reason?

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constitution-free-zoneBy IT-Lex Intern Shannon Allen (LinkedIn)

Government surveillance is in the news all the time.  This post recognizes the ongoing tension between the government’s national security mission and the reality that electronic devices, including laptops, are virtual extensions of individuals in society. A recent  Department of Homeland Security (“DHS”) ruling determined that the DHS can search any electronic device for any reason.   To be fair, the decision only applies within one hundred (100) miles of the coast (according to DHS, a reasonable distance from the border).  According to Techdirt and FindLaw, approximately two thirds (2/3) of Americans live within that range (also known as the “Constitution Free” Zone). (see the Constitution-Free Zone Map above)  Should this be troubling?

Techdirt reported that DHS’s “laptop search policies permit the government to “search laptops within 100 miles of the border” [and] “that an internal review found that there was minimal benefits to one’s civil liberties in not searching their laptops…

Wired explains that:

“[t]he . . . Bush administration first announced the suspicionless, electronics search rules in 2008. . . .[and t]he . . . Obama administration followed . . . 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.”

 and:

“[a]ccording to legal precedent, the Fourth Amendment — the right to be free from unreasonable searches and seizures — does not apply along the border. . . .[and] . . . [that] the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.”

The American Civil Liberties Union (“ACLU”) recommends, at a minimum, that “reasonable suspicion” should be the standard and argues that “a reasonable, articulate reason why the search of our electronic devices could lead to evidence of a crime . . . [is] a low threshold.”In the meantime, the ACLU has brought a suit on behalf of a NY man “whose laptop was seized along the Canadian border in 2010 and returned 11 days later after his attorney complained.”

In their February 13th article, FindLaw determined that “[t]he Fourth Amendment is on life support” because of the border search exception.  “Forget about the Patriot Act mining through millions of peoples’ data. That’s a needle in a haystack. They’ll just seize your smartphone and laptop at the border.”  FindLaw suggested the reintroduction of the “failed Travelers’ Privacy Protection Act of 2008, which would have required reasonable suspicion to seize and search travelers’ electronic devices.”

We leave the debate in your capable hands to decide how troubling this is, and what is to be done.

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2 Comments

  1. #privacylaws … Has SCOTUS defined “mobile device” yet? I smell an over broad challenge on the horizon. -Eric Everson (posted from my iPhone… Wait a minute, am I on one of those “mobile devices” that remain undefined under this framework?) #imaLexie @iamtechlaw

  2. They’re still sorting out the difference between an email and a pager, from the Quon case- see http://www.huffingtonpost.com/2010/04/21/ontario-quon-sexting-case_n_545764.html.

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