How Officials Are Using Border Security To Justify Invasive Searches Of Electronic Devices

CREDIT: Associated Press


David House

CREDIT: Associated Press

In November 2010, computer programmer David House was stopped at the airport on his way home from Mexico. Department of Homeland Security agents questioned him about his political beliefs, and seized his laptop, cell phone, camera, and a USB drive. They kept the electronics for more than a month, and examined the data seized for seven months, but found no evidence of any crime.

House was not stopped because he displayed any suspicious behavior that day, or was perceived as a border security threat. Instead, as revealed in newly released documents, officials had created an alert known as a “TECS lookout” for House because he had raised money for Chelsea Manning’s (then Pfc. Bradley Manning) legal defense and was “wanted for questioning re leak of classified material.” The advisory alerted officials when House had an international flight scheduled, and asked them to “secure digital media” at the inspection point — a seizure that would have otherwise typically required a court-ordered search warrant.

The alert created for House is part of an inter-agency program through which law enforcement officials are using the border as a basis for invasive seizures and searches of electronics that would otherwise be much more difficult, if not impossible, to achieve. Although House sued to challenge his seizure and search, the nature and scope of this program were not known until the government released documents on the program as part of a settlement with House earlier this year. The documents revealed that these alerts do not necessarily have any nexus to immigration violations or border security. They are not even targeted at suspects of a crime. A DHS memo on electronic searches says they may be ordered for anyone who “is the subject of, or person-of-interest-in, an ongoing law enforcement investigation and was flagged by a law enforcement ‘lookout,’” according to a review of these documents by the New York Times. And they create a new end-around for expansive scrutiny of those like House who may be “persons of interest” in an investigation because of their political expression or relationship to a suspect.

Under the Constitution’s Fourth Amendment, court-ordered search warrants and a showing of “probable cause” are typically required before the government can search an individual and seize items on his or her person, unless an exception applies. One of those exceptions is for searches at the border, under the rationale that the United States may protect itself by examining people crossing into the country. This exception is very broad, and allows courts to infer that “routine searches and inspections” are reasonable simply by virtue of being conducted at the border.

But a search of one’s electronics that persists for months after the individual has been re-admitted to the country tests the limits of any border security rationale. And a federal appeals court held earlier this year that a “forensic search” of a computer hard drive that also extended well beyond the individual’s detention at the border did not fall under the border security exception, and requires at least reasonable suspicion of criminal activity. The U.S. Supreme Court and other appeals courts have not reviewed a case of this sort.

This alone would be reason to question the propriety of the search. But the now-revealed government program of creating “alerts” also exploits this border security exception by using it as an end-run around the Fourth Amendment standard that would in many cases bar authorization for this sort of search.

As members of Congress discuss ramping up border security with a Senate bill that includes doubling the number of border agents at a cost of $30 billion, the potential for law enforcement to increase invasive searches under the guise of “border security” could increase exponentially.