Some border searches of digital devices illegal, judge says

On Behalf of Kirsch Daskas Law Group | Nov 20, 2019 | Criminal Defense |

A federal judge has ruled that federal border agents need a much stronger reason to search digital devices of people entering or reentering the United States.

For years, border agents and immigration patrol could search laptops, smartphones and other personal devices “without cause” whenever they felt like it. The judge now finds the agents must be able to point to a reasonable reason for suspicion of a crime.

30,000 unconstitutional searches annually

The agents did not need to give any reason at all for searching the personal devices of the people who brought the lawsuit. But those devices belonged to 10 American citizens and one lawful resident using our government’s ports of entry.

There were two journalists, one was a military veteran, another was an engineer for the National Aeronautics and Space Administration and another was a computer programmer. They filed a federal lawsuit in 2017.

In recent years, U.S. border agents search many more electronic devices like laptops and smartphones than ever before. They searched about 8,500 devices annually in 2015, but by 2018 the number grew to over 30,000 annually.

Judge orders a higher standard for searches

The Fourth Amendment of the U.S. Constitution says that the people have a right to expect that they and their stuff (“their persons, houses, papers, and effects”) will not be unreasonably searched or taken by the government without “probable cause.”

The judge did not say border agents must have “probable cause,” but did say the agents must have “reasonable suspicion.”

The American Civil Liberties Union says this much stricter rule gives “protections for the millions of international travelers” and makes it clear that “the border is not a lawless place and that we don’t lose our privacy rights when we travel.”