The lawsuit filed on Tuesday, September 7, in the Second Circuit challenging the federal government’s border search policy is yet another attempt to complicate and restrict our ability to protect the United States. The lawsuit specifically challenges the government’s border search exception to the Fourth Amendment’s warrant requirement as it relates to detaining and examining international travelers’ laptop computers, cellphones and other electronic devices.
At issue is the government’s position that its authority to protect the border includes the ability to review and examine the contents of the above described electronic devices without the “reasonable suspicion” requirement. That position has been consistently upheld by the federal appeals courts.
This continued challenge to the “suspicionless” border search exception in the post-September 11th era comes as both the Bush and Obama administrations have emphasized its use in an enhanced effort to stop terrorists from entering the U.S., and to uncover terrorist plots.
In reviewing the border search exception to the Fourth Amendment, the courts have clearly made a distinction between routine and non-routine border searches. They have summarized that Customs and Border Protection (CBP) may conduct routine searches without any suspicion while non-routine searches must be supported by reasonable suspicion. A routine search includes a traveler’s property, such as luggage, briefcases, wallets, bags and other containers. Searches of a traveler’s body, including strip and body cavity and involuntary x-rays, are considered non-routine.
The lawsuit comes at a time when laptops, and now smart phones, have become virtual extensions of the traveler. Even though only a small percentage of laptops are searched each year by U.S. border authorities, requiring reasonable suspicion to complete the examination process of a traveler’s laptop makes this device not his property (routine) but an extension of his body (non-routine). That is the classic “slippery slope” I do not think any of us want to deal with.