By Marco Garbero
For a U.S. citizen, Fourth Amendment protections against search and seizures are well defined through the vast amount of case law existing at both the state and federal level. Of course, there are always going to be nuances unique to each circumstance in which a law enforcement official conducts a search, but generally, American citizens are protected by the requirement of an official to procure a warrant backed by probable cause. Yet, the procedure for a warranted search becomes less clear when individuals are at the nation’s borders and subject to the control of U.S. border agents. As it seems recently, whenever national security is balanced against fourth amendment rights, the process for protecting individuals against apparent violations of privacy becomes muddled.
Recently, media reports have shed light on U.S. border agents, both at airports and border crossings, searching and detaining cell phones of American citizens without consent. Apparently, in these cases, citizens are pressured into unlocking their phones and handing them over to agents without much of a semblance for why they should do so. While the case law backing the need for warrants at the U.S. border is seemingly non-existent, several organizations, including the ACLU, have described how this fact does not mean that constitutional rights are not applicable at the nation’s borders. Cell phones hold intimate details of an individual’s private life and their seizure should mandate strict standards.
The U.S. government derives their authority to search and seize electronic devices from legal precedent that established a “border search exception” to the fourth amendment requirement of probable cause. Yet, as the horror stories of these searches become public, especially those cases in which citizens have been subjected to physical force for refusing to give up their devices, congress is pushing a new bill in an attempt to moderate the situation. The “Protecting Data at the Border Act” as currently written would have Border agents subject to the same standards that exist for obtaining a warrant within the U.S. Further, the bill would require Americans to be made aware of their rights before making a decision to consent to a search of their cellular phone.
These reports, and the subsequent response from Congress, are signs of an alarming trend of general mandates emboldening federal agencies to act on their own authority. While the practice of searching cellular devices at the border goes back several administrations, the lack of specific regulation will continue to result in grey areas of the law that inevitably lead to constitutional violations.
The current state of constitutional right protection at the border is less than ideal. For now, congress is responding, but only after numerous gross violations have occurred. Hopefully, after “Protecting Data at the Borders” has made its rounds through the house and senate, there will still be articulable piece of legislation that can leave no room for misinterpretation, and will protect citizens from further unwarranted searches at the border. This act does not even begin to address the rights of those individuals who are not American citizens, but it may be a step in the right direction for better oversight of the U.S. Customs and Border agency.
Student Bio: Marco is a staff member of the Journal of High Technology Law. He is currently a graduating 3L conducting a semester in practice working for the legal department at Medicines for Malaria Venture, a non-profit organization located in Geneva, Switzerland. Marco is also the Vice President of the Italian-American National Bar Association and is completing the intellectual property concentration at Suffolk Law.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.