NEW YORK – A judge ruled Tuesday that border patrol agents may search and copy files from computers as travelers enter the United States.
In August 2009, U.S. Immigration and Customs Enforcement (“ICE”) and U.S. Customs and Border Protection (“CBP”)—two components of the Department of Homeland Security—issued directives that authorize their agents to inspect any electronic devices that travelers seek to carry across an international border into the United States.
Those directives-which authorize the inspection of any files and images stored on electronic devices, the performance of searches on the electronic devices, the detainment of electronic devices for a reasonable time to perform such searches, and the copying of stored information to facilitate inspection-were challenged in New york District Court.
The plaintiffs argued that the directives purport to authorize unreasonable searches and seizures and operate to chill protected speech. Plaintiffs also argued that these searches violate “the constitutional rights of American citizens to keep the private and expressive details of their lives, as well as sensitive information obtained or created in the course of their work, free from unwarranted government scrutiny.”
According to the ruling from a New York district court Edward R. Korman, he cited a 2008 story in USA Today, where the author wrote “Since the founding of the republic, the federal government has held broad authority to conduct searches at the border to prevent the entry of dangerous people and goods. In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices, not on paper. This includes terrorist materials and despicable images of child pornography.”
The ruling says “the number of U.S. citizens subject to such a search comes to approximately 4.9 per day, or less than a five in a million chance that their computer will be subject to any kind of search. Even if both U.S. citizens and aliens are counted, there is about a 10 in a million chance that such a search will take place.”
Korman also cited a previous case which found that “Border searches . . . from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself.”
