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Electronic Device Searches At United States Borders

It is common knowledge that travelers have to take their laptop out of their suitcase upon arrival at airports.  However, not all people know the extent to which electronic devices can be confiscated and searched at the borders whether the traveler is a United States citizen or not.

Why and when can customs officials search your electronic device?

Once electronic devices enter the United States, the Fourth Amendment protects against unreasonable searches and seizures.  However, there is an exception to the Fourth Amendment protection at the borders.  In United States v. Ickles, the court confirmed that customs officials are allowed to search any cargo at the borders. In this case, a search of a vehicle’s cargo revealed a videotape focusing excessively on a young ball boy at a tennis match. A more thorough search uncovered drug paraphernalia, pornographic photographs, computer, and computer discs. The computer was confiscated after the defendant was arrested and searched, revealing child pornography. The defendant requested that the electronic evidence be suppressed claiming that the warrantless search of his electronic devices was protected by his First and Fourth Amendment rights. The court ruled that the search was justified because the border search doctrine indicates that reasonable suspicion and probable cause can be justification for searches without a warrant in order to protect against criminal activity. The First Amendment claim was ruled to be invalid as well because the content of a computer may be searched regardless of how expressive the discovered material may be in order to protect national interests.  The most recent case on this topic was United States v. Kim, which was heard and decided this year. This case was about a foreign national leaving the United States whose electronic devices were searched at the border. The search of his computer was found unlawful because although he may have committed a crime in the past, however, the crime had already occurred, and there was no reasonable suspicion or probable cause to search for imminent criminal activity.

How far can a device be taken under a border search?

What is considered “border” for certain searches may be expanded for security purposes. This is because the border entry points do not all have the resources to conduct a thorough analysis of a computer or digital device. Therefore, the courts allow a broad definition of what is considered “border.” In Cotterman v. U.S., the court differentiated the extended border searches and searches that occurred away from the physical border.  In this case, a reasonable suspicion of criminal activity led to a search of defendant’s computer.  The computer was shipped 170 miles away from the border to be analyzed by experts.  The court found that transporting the computer and holding it for a reasonable time did not need the higher level of suspicion the extended border standard required.  This search was still considered to have occurred at the border because the computer was not cleared by customs officials and returned to defendant’s possession.

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