A US Appeals Court Judge has ruled that Border Patrol agents do not need a warrant or reasonable suspicion to search electronic devices.
The ruling issued by Judge Sandra Lynch overturns an earlier district court ruling that found forcing border-crossers to unlock devices for warrantless searches in absence of any pressing reason to be unconstitutional. Civil liberties activists had successfully argued in lower courts that such searches were a violation of the 1st and 4th Amendment, the latter of which protects against unreasonable searches by authorities.
“We find no violations of either the Fourth Amendment or the First Amendment. While this court apparently is the first circuit court to address these questions in a civil action, several of our sister circuits have addressed similar questions in criminal proceedings prosecuted by the United States,” Lynch wrote. “We join the Eleventh Circuit in holding that advanced searches of electronic devices at the border do not require a warrant or probable cause.”
Elsewhere in the ruling, Lynch ignored the Fourth Amendment’s mention of “papers and effects” to argue that an electronic device search can’t count as an unreasonable search of a person.
“Electronic device searches do not fit neatly into other categories of property searches, but the bottom line is that basic border searches of electronic devices do not involve an intrusive search of a person,” she wrote.
Elsewhere, Lynch notes the leeway that searches at the border have historically been given. Several court cases have built up a standard of slightly lessened 4th Amendment protections at the border because of the need to protect national security. Federal agents are already given a wide berth to conduct warrantless searches under the “border search exception” (with the frightening caveat that all land within 100 miles of a US border counts as “the border,” thereby including nearly every major U.S. city). Adding phones and laptops to the list of things agents can legally search without cause or a warrant is a major blow to the privacy of all citizens. As is to be expected, the ACLU was not happy to hear of the ruling.
“Warrantless and suspicionless electronic device searches can give border officers unfettered access to vast amounts of private information about our lives,” Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project, told The Verge. “We are disappointed with the ruling and evaluating all options to ensure we don’t lose our privacy rights when we travel.”