Homeland Security Has A Borderline Policy On Searches

I have a little favor to ask of you. I would like to borrow your cell phone, your iPad and your laptop computer for a couple of weeks. I’m going to crack your passwords and your firewalls so that I can rummage through every piece of data you have stored on your electronic devices.  All your contacts, all your messages, all your financial information.

You’re OK with that, right?  After all, if you don’t have anything to hide, you don’t have anything to fear.  And you can trust me to not misuse anything I find, because I’m the Department of Homeland Security.

Most people assume that the government could never do something like this.  After all, the Fourth Amendment to the U.S. Constitution says that the government cannot search or seize a person’s property without probable cause to believe that a crime has been committed.

However, the Fourth Amendment does not apply to searches at the border as you are entering or leaving the country.  That is why the Customs inspector can open your luggage and paw through your dirty underwear when you return from Cancun (or Toronto).

Since its creation in 2002, the Department of Homeland Security has interpreted this exception in breathtaking new ways. In 2008, the DHS adopted a new policy regarding border searches. The policy states that DHS can not only search electronic devices at the border; it can seize the devices and hold them for days or weeks while the contents are analyzed.

A New York man whose laptop was seized at the Canadian border in 2010 has sued DHS, contending that the search and seizure was illegal. In his case, his laptop was help for 11 days before being returned.  The man was never charged with any wrongdoing. The case is still pending.

The most shocking part of the Homeland Security policy, though, concerns the how broadly DHS defines “the border.”  DHS considers “the border” to include anywhere in the United States that is within 100 miles of a land or sea border.

That’s right.  According to DHS, the Fourth Amendment does not apply to anyone found within 100 miles of the ocean, the border with Canada, or the border with Mexico.  This 100 mile Constitution-Free Zone includes approximately 65% of all the people living in the United States.

It includes New York City, Boston, Philadelphia, Miami, Los Angeles, Houston and Seattle. It also includes Cleveland, Akron, Toledo and Columbus.

In fact, it includes the entire states of Hawaii, Delaware, Connecticut, New Hampshire, Rhode Island, Maine and Florida. If you live anywhere in one of these states, DHS says that it can search your electronic devices anytime it wants, without probable cause and without a warrant.

According to the magazine Wired, DHS seized the electronic devices of over 6,500 travelers during the period between 2008 and 2011.

Does this elimination of Fourth Amendment concern Homeland Security? According to a DHS policy memo, “there was minimal benefits to one’s civil liberties in not searching their laptops…” Because your personal privacy really isn’t much of a benefit.

After all, if you don’t have anything to hide, you have nothing to fear.

Have a question or a suggestion for a topic?  Email dspirgen@SpirgenLawFirm.com.

Patch posts are general discussions and should not be used as advice on any specific legal matter.  If you need legal advice on a particular situation, please consult an attorney.