A federal appeals court in Boston ruled yesterday that defending homeland security trumps privacy and free-speech rights at the border, so federal agents don't need a warrant or even "reasonable suspicion" to seize your phone or laptop on your return from a foreign trip, turn it on and see what pops up.
Other federal courts have issued similar rulings in criminal cases, but yesterday's ruling by the US Court of Appeals for the First Circuit may be the first such ruling in a civil case, in which several American citizens and one permanent resident who had their devices searched at an international airport but who were not criminally charged with anything, sued.
Although courts, including the Supreme Court, in 2014, have held that, if anything, phones require particular sensitivity to privacy issues because of the the vast amount of personal information somebody might keep on them, the First Circuit ruled that such Fourth Amendment rights against unreasonable searches and seizures only come into play once somebody's managed to clear customs without being detained, that one is not covered by the Constitution's penumbra while still going through a customs check. The court said similar logic applies to any rights to text on the device under the First Amendment.
The court said border searches have long been mostly exempt from the Fourth Amendment, under the premise that the government has the "inherent authority to protect, and a paramount interest in protecting, its territorial integrity," that the nation's right to protect itself is "at its zenith" at the border. And so, the court cited a 1985 case, that "the expectation of privacy [is] less at the border than in the interior ... [and] the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border."
The court added:
Further, given the volume of travelers passing through our nation's borders, warrantless electronic device searches are essential to the border search exception's purpose of ensuring that the executive branch can adequately protect the border. ...
A warrant requirement - and the delays it would incur - would hamstring the agencies' efforts to prevent border-related crime and protect this country from national security threats.
The court emphasized its ruling covers "basic" searches, in which an agent turns a device on and looks around, and that they have a certain "reasonable" period of time - five days for customs agents, but thirty days for ICE agents, under each agency's rules - before either returning the device to the owner, assuming he or she is not in detention, or without seeking approval from a supervisor.
The court said matters become a bit more complicated should the agent want to go deeper, for example, to look at the contents of encrypted files or files that have been marked as deleted, but said that even there, only "reasonable suspicion" is needed.