The United States is known the world over as a country of freedom and liberty. In fact, many consider it to be a country that values individual accomplishments and freedoms above all else. A part of that freedom is characterized by an individual’s right to privacy that protects him or her from unreasonable search and seizure. This Bill of Rights freedom (4th Amendment to be exact) protects against searches without probable cause, and stop and frisks without reasonable suspicion.
However, most individuals do not realize that these rights are not particularly present at the border’s of the United States. In fact, it is historically accurate to describe the government as having the right to search a person’s property if he or she is entering into the United States. This border exception to the probable cause requirement to the 4th Amendment right has been administered for many years without much fuss.
However, within the last ten years, this exception has taken on a new face, and is perhaps being applied more broadly than what was originally intended. In particular, the Customs and Border Protection (“CBP”) agency has used the exception to search the laptops, tablets, smart phones, and memory storage units of individuals coming into the United States (including U.S. citizens). This broad search authority has drawn criticism from privacy groups.
Recently, in considering a lawsuit, the Ninth Appeals Court determined that CBP must have “reasonable suspicion” to search electronic devices at the border. In the instant case, reasonable suspicion was established because of the defendant’s prior criminal activities, frequent travel to countries involved in criminal activities, and wide collection of equipment used for the production of criminal products. The Court noted, however, that the existence of password protected files alone does not rise to a level of reasonable suspicion.
Going forward, the CBP posts located in the Ninth Appeals Court (mostly Western parts of the US), will need to follow this decision and find reasonable suspicion to search the documents. Outside of the Ninth Appeals Court region, the CBP does not yet need to show reasonable suspicion (although that may change if a court decides to follow the Ninth Appeals Court decision).