December 10, 2012
Electronic devices, including computers (including laptops and tablets), mobile phones, digital cameras, and USB drives (as well as other digital storage equipment), are now frequently searched when their owners enter the United States. Few question the authority of border security personnel to search those devices. Substantial questions arise, however, when the digital equipment is effectively seized by the authorities to enable them to spend days, weeks, or even months reviewing the digital content.
Currently, the federal courts are considering two cases in which personal computer equipment was seized at the border and retained by authorities for extended periods of time without a warrant. Pascal Abidor’s case against the U.S. government, based on his detention and the eleven day seizure of his laptop computer, is pending in the Eastern District of New York. David House’s case contesting the government’s seven week seizure of his laptop, USB drive, and digital camera is under review in federal district court in Massachusetts.
Some suggest that David House received special attention from the authorities as a result of his reported past association with Bradley Manning, an apparent participant in the WikiLeaks controversy. It seems possible that House’s perceived connection to Manning made authorities interested in an extensive review of his digital files.
Border seizures of digital equipment without warrants and associated extensive searches of the digital content of the equipment are inappropriate. Those actions constitute an unacceptable intrusion into the civil liberties of individuals. This problem is becoming increasingly significant as the number of electronic devices that store records of an individual’s communications and activities grows.
It is also inappropriate for authorities to detain the owners of the computer equipment at the border to provide additional time to search the devices, unless the authorities have probable cause for the detention and more extensive search.
A growing number of individuals now routinely assume that their computers and other electronic devices will be searched, as a matter of course, when they enter the United States. For this reason, some deliberately minimize the amount of digital equipment they bring with them during border crossings. Others attempt to manage the content of those devices to ensure that they contain no private material at the time of the crossing.
The controversy over border searches of digital content provides an example of the increasing number of instances in which civil liberties are being threatened or lost in the name of national security. In our haste to secure our borders, we should not be willing to sacrifice fundamental civil rights.