Balancing Security & Privacy of Electronic Border Searches
By Sasha Brisbon
The Fourth Amendment provides the fundamental right to security and privacy from intrusion by the government by protecting an individual’s security in their person and their belongings through the prohibition of unreasonable search and seizures. However, the Fourth Amendment is stitched together with two separate threads – the reasonableness clause and the warrant clause. The reasonableness clause requires a search and seizure to be plausible and appropriate whereas the warrant clause demands particularity of the “place to be searched” and the “people or things to be seized.”
While a warrant is certainly required to search a person or their property, the Supreme Court upheld a number of exceptions that permit a warrantless search and seizure under the Fourth Amendment. Nevertheless, still enforcing the interest of the government balanced with the protection of individual privacy, the Supreme Court established a balancing test known as the special needs doctrine in Terry v. Ohio which enabled grave exceptions to the Fourth Amendment. Congress and the Supreme Court definitively established the existence (though not the precise parameters) of recognized exceptions to the warrant requirement in certain situations, including the border search doctrine. In 1985, the Supreme Court in United States v. Montoya de Hernandez emphasized “balance of reasonableness is qualitatively different at the international border than in the interior.” Here, warrants were not required for routine border searches, and such searches could be performed in the absence of probable cause or even reasonable suspicion. The Court, legitimizing the border search exception, noted “since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. Thus lowering the expectation of privacy at the borders in order to fulfill the outweighing interest to control “who and what may enter the country.” The Court, in United States v. Ramsey, held that a “reasonable cause to suspect a customs law violation … is a practical test that is, [a]dmittingly, less stringent than the probable cause standard for the issuance of warrants imposed by the Fourth Amendment.”
For example, the examination of luggage is almost unquestionably necessary so that Custom Border Patrol agents (CBP) can ensure that narcotics, explosives, and the like are not entering the country. Nevertheless, even those who oppose the application of the border search exception to computers and electronic devices agree that CBP must have the ability to search the belongings and person of travelers for contraband and other dangerous items. The Supreme Court, until recently, left open the possibility that searches of property could be so offensive, intrusive, or destructive as to require a finding of particularized suspicion or probable cause to render them constitutional.
Last week, in a 48-page decision, U.S. District Judge Denise Casper said the Fourth Amendment’s protections against unreasonable searches and seizures require authorities to have at least a reasonable and individualized suspicion of criminal activity. Judge Casper ruled that border agents cannot search international travelers’ electronic devices without suspecting them of a crime. “Even under the border search exception, it is the privacy interest implicated by unfettered access to such a trove of personal information that must be balanced against the promotion of paramount governmental interests at the border.” Judge Casper also noted that CBP’s privacy policies, including reasonable suspicion requirements, were not at all strong enough.
At the U.S. borders, a graduated search is distinguished between reasonable suspicion for a basic search and probable cause for an advanced, forensic search. The level of suspicion required at the outset to search devices isn’t narrowly circumscribed and a strong showing of probable cause is usually absent. Outside of the border-search context, extensive protections are available to ensure the security of privileged or proprietary information: attorney-client protections are among the highest privileges granted under law, and the crucial confidentiality of business information such as trade secrets, journalistic sources, potential merger agreements, and reports on internal investigations can be all but guaranteed by contractual arrangements. Border searches that go beyond routine are justified by reasonable suspicion, a lesser standard than that required for non-border searches. Reasonable suspicion at the border requires a particularized and objective basis for suspecting the particular person. Courts tend to require reasonable suspicion for highly intrusive searches of a person, such as those used to detect drugs swallowed by individuals. Other types of searches considered non-routine include strip searches, body cavity searches, searches that destroy property, and prolonged detentions of individuals. Thus, courts have given CBP tremendous leeway to investigate personal property at the border.
The Court grappled with those concerns in United States v. Montoya de Hernandez, a case where reasonable suspicion was required to detain a woman suspected of swallowing drug-filled balloons in an effort to smuggle the narcotics into the country. Federal agents suspected Montoya de Hernandez was an alimentary canal smuggler after she arrived at the Los Angeles Airport from Colombia, completing one of eight recent trips between Colombia and either Miami or Los Angeles. Upon referring her to a secondary inspector, the agents learned she had no friends or family in the United States, was carrying $5,000 in cash to purchase goods for her husband’s store in Bogota, did not recall how her airline ticket was purchased, and did not have a hotel reservation (but planned to stay at a Holiday Inn). After the federal agents asked her to submit to an X-ray, she refused, so agents detained her for 16 hours at the airport until she passed balloons containing cocaine. She was convicted of possession of cocaine with intent to distribute.
After the Ninth Circuit overturned Montoya de Hernandez’s conviction by questioning the “humanity” of holding her until a bowel movement, the Supreme Court reversed the circuit court’s decision. The Court rejected the Ninth Circuit’s effort to establish a “clear indication” standard onto the Fourth Amendment, holding that reasonable suspicion and probable cause were sufficient to handle the amendment’s reasonableness requirement. Since this decision, lower courts have interpreted Montoya de Hernandez as a warning against using standards other than reasonable suspicion for non-routine border searches.
On the other hand, in United States v. Flores-Montano, a seminal case on routine border searches, customs agents stopped a Ford Taurus at the California-Mexico border and removed its gas tank to find concealed marijuana bricks. In dispensing with the driver’s argument that he has a privacy interest in his gas tank, the Court found a paramount government interest in border integrity by pointing to data that showed a large number of drug seizures at border entry points in California where drugs were hidden in gas tanks. The Court relied on the balancing test to determine what is a routine search of a vehicle, as opposed to a more intrusive search of a person, do not matter at the border. Accordingly, the dignity and privacy interests that were not implicated in personal property at the border in Flores-Montano can require reasonable suspicion in intrusive searches of the person.
Moreover, the border search exception, at its core, applies to the Fourth Amendment’s requirement that searches and seizures maintain reasonableness. Alternatively, in other Fourth Amendment instances, the distinction between reasonable and unreasonable searches is determined by what was considered unreasonable at the time of the amendment’s adoption, in light of the public interests involved, and the rights of individual citizens. However, unlike searches made in the country’s interior, most border searches are considered “reasonable,” even when made without probable cause. Therefore, the presumption of reasonableness is clearly based more on the government’s sovereign interest in protecting itself by controlling who or what crosses its borders. Thus strengthening the government’s interest and hijacking every individuals’ expectation of privacy.
The adoption of a reasonable suspicion standard, as well as the specific protections discussed, would better protect both common defense and the rights of the individual. It is not the potential for enormous storage capacity, but rather the nature of what is stored and the invasion necessary to perform the search, that distinguishes the search and seizure of information on electronic storage devices from traditional border searches, and renders the former particularly offensive and exceptionally damaging.
CBP’s current policy poses a threat to Fourth Amendment guarantees when applied to laptops and similar devices. While the recent District Court decision puts a limit on the growing practices at U.S. borders, both the legislature and the courts must collectively mandate protections for travelers crossing the border. However, the legislature may be better suited to implement such protections.
The Supreme Court or Congress ought to definitively establish reasonable suspicion of wrongdoing as necessary to legitimize searches or duplication of electronic information at the border; in addition, CBP should be required to make a record of the search and the basis for finding particularized suspicion available to the affected individual. Further, strict guidelines should be established to ensure that travelers have a way of knowing what information has been copied, and to mandate notification when the information is destroyed after a determination that it does not contain anything illicit.
When faced with the next constitutional challenge, one hopes that the courts will cease to allow national security justifications to erode protection of civil liberties at the border. The rights at stake are substantial. Electronic devices “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Even the term cell phone is misleading as many of these devices are in fact minicomputers that also happen to be used as a telephone. Their distinguishing feature is the immense storage capacity. As the Court noted, most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read. With mobile devices, they can. The search of electronic devices differ from physical searches in terms of volume as well as the type of information that can be obtained: medical records, location data, informational regarding political beliefs or religious convictions, and details about intimate relationships stretching back for decades. Moreover, egregious invasions of personal privacy by border agents must end; CBP should not have unfettered access to the private lives of Americans and others entering the border.