Search and seizure: No Fourth-Amendment rights at Borders

In 2002, the Homeland Security Act established the Department of Homeland Security (DHS) combining a number of U.S. law enforcement andd. The US Customs Service and the Immigration and Naturalization Service contributed to the formation of the newly named Immigration and Customs Enforcement (ICE) and the Customs and Border Protection (CBP) agencies.

The CBP provides several useful documents summarizing its authority to search entering travellers' electronic equipment. The Directive "Border Searches of Electronic Devices" (BSED) from the ICE Policy System also clarifies the policies. In this 2009 document, the policy states that border guards may search and interrogate any person attempting to cross into the United States. They are not subject to the Fourth Amendment restrictions discussed in previous articles in this series; for example [page 4], "At no point during a border search of electronic devices is it necessary to ask the traveler for consent to search." Officers may seize computers and keep them for a "reasonable time," defined on page 5 of the BSED as follows (quoting exactly):

>In determining "reasonable time," courts have reviewed the elapsed time between the detention and the completion of the border search, taking into account any additional facts and circumstances unique to the case. As such, ICE Special Agents are to document the progress of their searches, for devices and copies of information therefrom, and should consider the following factors:

a) The amount of information needing review;

b) Whether the traveler was deprived of his or her property and, if so, whether the traveler was given the option of continuing his or her journey with the understanding that ICE would return the property once its border search was complete or a copy could be made;

c) Whether assistance was sought and the type of such assistance;

d) Whether and when ICE followed up with the agency or entity providing assistance to ensure a timely review;

e) Whether the traveler has taken affirmative steps to prevent the search of his or her property in a timely fashion; and

f) Any unanticipated exigency that may arise. <

Thus there are no explicit, objective, or specific legal limits on the retention period for seized computers. The decision to search and seize depends on the individual decisions of border guards.

As a visitor to the United States in 1980 and an immigrant from Canada in 1998, I personally experienced outrageous discrimination by U.S. border guards who were not bound by the rule of law.

As the American Civil Liberties Union (ACLU) puts it eloquently in one of its press releases, "Obeying the Constitution is not optional, and we don’t decide whether to apply it on a case by case basis…. Our criminal justice system is fully capable of protecting security interests while also upholding our values. If we have learned nothing else over the last decade, it's that circumventing the rule of law leads to tragic consequences."


Copyright © 2011 IDG Communications, Inc.

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