US judge rules warrantless search of electronic devices is not unconstitutional… at the border

border

Edward Korman, a United States district judge, has ruled that it is not unconstitutional to have your gadgets searched without a warrant when crossing American borders.

This ruling came about during a trial in which the right to inspect gadgets without probable cause was being challenged. “What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, who is a lawyer, working for the American Civil Liberties Union.

Korman eventually ruled that the searches did not violate the First and Fourth Amendments and that “previous rulings finding that the Fourth Amendment right against unreasonable searches doesn’t apply to the government’s efforts to secure international borders from outside threats,” according to AP.

“Unfortunately, these searches are part of a broader pattern of aggressive government surveillance that collects information on too many innocent people, under lax standards, and without adequate oversight,” Crump said. She is also considering an appeal at some point.

Personally, unless border checkpoints are situated on Mexican or Canadian soil, I disagree that this is not a violation of our Bill of Rights. The border is no less America than the rest of the country. On the other hand, it is reasonable that the government needs some leeway to secure our borders, and the ability to quickly search electronic devices of suspects at the border is understandable. However, the question remains: how will we prevent the power from being abused?

[via Engadget, AP]

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11 comments

  1. Netpilot

    [@Darcy] TL;DR X-rays have absolutely NO effect or have ever done any harm to data on magnetic media, including hard drives. In fact, x-rays cannot affect them. Bottom line, there is no concern putting laptops through x-ray screening machines.

    Erasure of magnetic recording media from x-rays is a total myth. There may have been a very few defective x-ray scanners whose magnetic electronic components (coils, transformers, etc.) were defective or improperly shielded (and any accounts have been anecdotal), but those machines were repaired or phased out decades ago. Either way, it was never the x-rays.

    Google “facts about x ray erasing magnetic media” and you can read hundreds of technical articles and formal test reports of magnetic media exposed to human-lethal doses of all forms of radiation. No data loss has occurred.

    Two notes:

    1) Walk-through and hand-held metal detectors DO produce magnetic fields (that’s how they work to detect ferrous metals and why noble metals such as solid gold or platinum don’t trip the detectors). However, the sensors in those devices have improved to the point where the magnetic fields nowadays are very weak and are unlikely to do harm to magnetic media.

    2) Chemical photographic film is an entirely different media and subject altogether. Film is, by its very characteristics, is quite sensitive to x-rays. In general, any moderately high-speed film (ASA400 or higher) should be requested to be hand-screened. In addition, x-ray exposure to film is cumulative. If you will be travelling through several screenings in one trip, you should request that all of your film be hand-screened each time.

  2. Darcy

    [@Netpilot] I had not heard about the Trusted Traveler Program, thanks for the information. =)

    One thing though, x-ray machines used to wipe floppy disks and other magnetic recording media. Does the x-ray process hurt the information on hard disks in the laptop as well?

  3. Mike S.

    Oh, and by the way: I don’t want my guests and visitors to this country to be treated that way, either. An issue I have seen with the NSA, with non-U.S. citizens permissibly being treated worse than U.S. citizens.

  4. Mike S.

    A data device (laptop, phone, etc.) is a modern diary. I have no issue with its being searched, IF there is probable cause that I have violated some law. But to search through my proverbial undies on a fishing expedition feels like a violation of my person.

  5. Netpilot

    [@Ashraf]
    “So that airport I land at in New York City is NOT the United States? Not every border checkpoint is literally at the border.”

    That’s not precisely what I said. Per the US Border Search Exception, the customs area of an international airport is a “functional equivalent” of a border, so yes, warrantless searches are absolutely permitted in the clearly marked customs area, right in the middle of New York City and at every other international airport in the US.

    “… I’m questioning the potential for abuse, especially as someone who gets “randomly” selected for extra screening and checks 11 out of 10 times I fly.”

    If you are talking about ’11 out of 10′ international flights, then all I can say is that’s very unfortunate and I understand your frustration.

    However, if you get extra screening on domestic flights (not connecting to an international flight), that’s the domain of the TSA. Unfortunately, they do profile and screen passengers based on several, ever-changing criteria. But sticking to the original topic, the TSA does not have the authority to search your electronic devices without a warrant.

    Off-topic, and for the record, I dislike the whole TSA process as much as anyone. I am going to apply for the “Trusted Traveler Program” as soon as my area becomes eligible (which should be this year). I recently flew cross-country on JetBlue and purchased an “Even More Space” seat. To my surprise, the purchase included “Even More Speed” expedited security, essentially permitting me to shortcut through the Trusted Traveler TSA screening process.

    The same basic rules about allowed carry-ons apply there, including restrictions on liquids and disallowed objects, but the TSA agents were actually friendly! They allowed and actually encouraged us to keep everything inside our carry-ons, including liquids and electronics, such as laptops and medical devices, all of which went through the usual X-ray machine.

    We had to empty our pockets, but we got to keep all of our clothes on, including shoes, light coats, belts, watches, and jewelry. We only had to go through a quick millimeter-wave whole-body scan and I got one pass of the magnetic wand near my jeans pocket where the extra rivets are for the small pocket. I then got waved through with a smile.

    The entire process took 2-3 minutes. Sanity just may return to the TSA screening process!

  6. Tony

    @Ashraf, why you gave them the stink eye? didn’t you mention earlier that harassment is OK? to me, Inconvenience is OK (like everybody shoes off…) but not harassment!
    Anyway, you are very cool man, 11 out of 10 and
    still calm, still see justification!

  7. Ashraf
    Mr. Boss

    [@tony] I don’t know about racial profiling, and really I don’t care how many times they search me. I’d rather they harass people through security rather than sit in a plane that blows up. For me, that freedom — if you can call it that — is worth giving up for security. However, there is up to a point I will take and a TSA or ICE agent feeling the need to sift through my laptop at their leisure is where I draw the line. Of course, if proper checks and balances are in place then they can’t simply help themselves to my laptop just because I gave them the stink eye — but without those checks and balances, the potential of a blank check is too great.

    It isn’t about something I’m hiding in my laptop. It is about invasion of privacy for no good reason.

  8. Ashraf
    Mr. Boss

    [@Netpilot] So that airport I land at in New York City is NOT the United States? Not every border checkpoint is literally at the border.

    And don’t be so naive as to think everything the government does is in our (the “common man”) best interest. I’m not questioning the government’s intent to secure our borders; I’m questioning the potential for abuse, especially as someone who gets “randomly” selected for extra screening and checks 11 out of 10 times I fly. The Bill of Rights was created to prevent abuse and increasingly more instances of subversion of that doctrine should be alarming to every American.

  9. Netpilot

    All international borders (or their functional equivalents, i.e., international airports, docks, etc.), have been long-held to be a kind of no-man’s-land. You have less rights than when well within either country. In fact, between some pairs of countries, there is a zone where you have no rights at all; you have left one country and have not yet entered the next.

    At US borders (including within 100 miles inside of ‘external boundaries’), the Fourth Amendment applies, but “with the exception of the Amendment’s requirement for a warrant (or probable cause)”.

    It is the US government’s job is to enforce Title 19 of the United States Code which outlines protections and enforcement of all sorts of activity across borders including smuggling. Without the US Border Search Exception (http://en.wikipedia.org/wiki/Border_search_exception), borders would actually be a ‘safe haven’ for smugglers and terrorists.

    I strongly disagree with your opinion that warrantless searches at borders are a violation of our Bill of Rights. As citizens, we have our judicial system to keep abuse in check.

    We are very fortunate with our rights and freedoms within the US, but some are a bit ‘spoiled’. If anyone is that concerned about our government’s sovereign interest (and methods) to protect us at our borders, then they should stay comfortably well inside of them.