BY BOB BARR
The necessity for the federal government to know what items were being brought into the country from outside our borders, in order to ensure payment of customs duties, was deemed of such importance that the very first Congress in 1789 passed a law providing plenary authority for Customs officials to conduct searches of any vessel in order to discover contraband (several years later, in 1815, the authority was extended to “any person . . . or beast of burden” crossing the border into the United States). This power occupies the constitutionally dubious distinction of being one of the very first exceptions to the warrant requirement guaranteed by the Fourth Amendment to our Constitution.
Now, two centuries later as foreign visitors to the United States are discovering, the power to search a suitcase or a saddlebag for contraband hidden among one’s packed underwear, has morphed into a broad – almost limitless – assertion of power by Uncle Sam to electronically scroll through a person’s laptop or smart phone; searching not for evidence of contraband, but for evidence of well, . . . whatever government agents want to look for.
While U.S. citizens may take solace in the fact that Customs agents are asserting this broad authority generally as to foreign travelers entering the United States, the power is bleeding over into searches of American citizens returning to their home country. And, despite a 2013 opinion by the Ninth Circuit Court of Appeals that a forensic search of a laptop computer belonging to a U.S. citizen reentering the United States after a trip to Mexico, required a showing of reasonable suspicion that the owner had committed a crime, the slippery slope of border searches based on little more than whim, appears already in front of us.
The current attitude regarding border searches prevalent throughout much of the federal bureaucracy today, is illustrated by a statement earlier this year by Homeland Security Secretary John Kelly. When testifying before the House Homeland Security Committee regarding the Administration’s proposed immigration ban, Kelly blithely opined that “If [foreign visitors] don’t want to give us that information, then they don’t come.” He was referring to demands by Customs agents that foreign visitors divulge their social media accounts and passwords before they are allowed to pass through Customs.
In addition to asserting its long-standing power to search any item carried by individuals entering the United States at a port of entry, many people likely would be surprised to learn that this power exercised by agents of the Customs and Border Protection (CPB), extends to 100 miles inland from any deemed “external boundary” – incorporating almost two-thirds of the country’s population. Thus are federal agents able to circumvent the protections against “unreasonable searches and seizures” to which they would be otherwise subject.
The Ninth Circuit’s opinion in the 2013 case (United States v. Cotterman), which placed at least some limit on the government’s power to forensically search a person’s laptop at a port of entry, provides powerful language that reflects just how invasive these searches truly are. The majority opinion in the case accurately described how the forensic examination of such electronic devices is akin to searching a traveler’s suitcase and determining “not only what the bag contained on the current trip, but everything it had ever carried.” This holding, while a welcome addition to privacy and Fourth Amendment law, has not yet been presented to – much less adopted by — the Supreme Court; it is high time it do so.
The federal government is flexing its muscles in other ways, as well. Earlier this year, for example, CBP agents boarded a Delta Airlines flight when it landed in New York. The plane had not completed a flight from Europe, South America, or other non-U.S. city, but from San Francisco – a purely domestic flight. The uniformed agents apparently were looking for a particular individual subject to removal by CBP’s sister agency, Immigration and Customs Enforcement (ICE), and requested that all passengers respond to at least verbally identify themselves. While the government issued a statement stressing that its request for all passengers to identify themselves was not mandatory, the incident further acclimates airline passengers to being subject to customs enforcement regardless of whether they are flying domestically or internationally.
Rather than relying on a two-century old principle that the federal government can physically search suitcases for contraband, as the basis for forensic searches of electronic devices, the Congress needs to modernize this body of law. Uncle Sam might have to work a bit harder at identifying likely criminals at our borders before it can search electronic devices, but the gain to individual privacy interests and respect for the true meaning of the Bill of Rights, would make such a move far more worthwhile.
Self-Educated American Contributing Editor, Bob Barr, represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.