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We need a new privacy framework for border searches
by Decius at 6:13 pm EST, Feb 9, 2013

This month, the U.S. Department of Homeland Security published the executive summary for their civil liberties assessment of U.S. Customs searches of traveler's electronic devices. To put it briefly, DHS has concluded that additional civil liberties safeguards to protect traveler's privacy either are not needed or would not be effective. However, they have decided not to publish the reasoning behind these conclusions.

In the absence of an explanation, all we can do is speculate as to what their reasoning might be, but if the kind of safeguards that DHS considered in their assessment would not be effective, perhaps this means that it is time to reconsider the framework of Constitutional safeguards that are available.

U.S. Customs has performed searches of travelers belongings at border crossings since at least the civil war era. In recent times a confluence of factors has introduced some controversy about these searches. On the one hand, the pressures of the war on drugs as well as the terrorist attacks of September 11th have increased the frequency and intrusiveness of the searches that are being performed. On the other hand, the dropping costs of air travel have placed a larger cross section of the public at border crossings with increased frequency, and the advent of the laptop computer has placed massive archives of personal information in those travelers hands as they cross those borders.

DHS has long maintained that U.S. Customs agents can search and seize traveler's electronics at random, without any reason or suspicion. Thousands of travelers electronic devices are searched and/or seized every single year.

Some people mistakenly conclude that this is because the Fourth Amendment doesn't apply at the border. The reasoning is actually more subtle. The Forth Amendment requires that probable cause be established before a search warrant can be issued, but it doesn't state that a search warrant is required for every kind of search - it merely protects the right of the people to be secure against "unreasonable searches and seizures." The Constitution leaves it up to the courts to determine what kind of searches are "reasonable" and what kind of searches are "unreasonable," as well as when a warrant is needed.

In general, the Supreme Court has concluded the U.S. Customs may search the belongings of travelers at border crossings at random, without any reason or suspicion. The court has determined that these searches are "reasonable" because they occur at the border, and therefore probable cause does not need to be established and a warrant does not need to be obtained.

However, there are limits to this power. Extremely intrusive searches, such as body cavity searches or strip searches, require that "reasonable suspicion" be established before they take place at the border. "Reasonable suspicion" is a standard of suspicion like ... [ Read More (0.7k in body) ]

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