First Circuit Allows Border Agents to Search Personal Electronics

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The Boston-based First Circuit court ruled Wednesday that border agents can turn on a U.S. citizen’s laptop, phone or other digital device, scroll through the data and then confiscate it for weeks even if they don’t have any reason to suspect that the owner is guilty of a crime, reports the Courthouse News Service. In a 29 page decision, the court decided that “given the volume of travelers passing through our nation’s borders, warrantless electronic device searches are essential to … adequately protect the border,” and that requiring suspicion of wrongdoing “would hamstring the agencies’ efforts to prevent border-related crime and protect this country from national security threats.” Searches of electronic devices at the border are rapidly increasing. There were 30,524 searches in fiscal 2017 when this case was filed, according to Customs and Border Patrol figures, up from 8,503 only two years earlier.

The ACLU and the Electronic Frontier Foundation brought this suit on behalf of a group of returning Americans — a military veteran, a NASA engineer and a business owner, among them — who had experienced border searches. All are Muslims or people of color as well as U.S. citizens or lawful permanent residents.  The First Circuit differentiated this case from a 2014 Supreme Court ruling that said police can’t search suspects’ cellphones after arresting them, arguing that searches at the border are fundamentally different from searches incident to arrest. In addition to the claim that the decision violated the Fourth Amendment, the ACLU had argued that the border searches violated the First Amendment because people’s free speech could be chilled if they knew that government officials could read their private emails, and because the government could target journalists and criminal defense attorneys for intrusive and inappropriate searches. The court said it might consider a different outcome in a future case “should there be abuses.”

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