Wednesday, December 12, 2012
Border Searches of Digital Devices
Fourth Amendment protections are much weaker at the border. Your digital device is subject to the usual rules. The search of the device can be done automatically, no suspicion, warrant, etc. required. The lawsuit did not challenge the siezure of the device. If the search had taken place relatively quickly after the seizure, there would be no case. The delay in conducting the search was the issue. In spite of some good arguments about privacy and First Amendment concerns, I don't see courts treating digital devices any differently. To be searched under the Fourth Amendment, the person must have had a reasonable expectation of privacy in the item searched. Given the historical powers of the government at the border, the fact that border crossing is, in most cases, voluntary, people expect more scrutiny at the border, people can delete sensitive info from their computers before coming to the border, the widespread use of computers by terrorists and criminal gangs, etc., arguably, there is no reasonable expectation of privacy. Even if there was a reasonable expectation of privacy, the government interest would outweigh the degree of the intrusion. Sorry, but this cautious libertarian is leaning toward the side of caution on this one.