US Customs digital searches could violate the 4th amendment

There has been plenty of controversy surrounding the pat-downs and scans that Transportation Security Administration (TSA) officials have been conducting in airports throughout the United States. Now, Customs and Border Protection officers are also coming under fire for searches that are being conducted of travelers’ computers in the interest of “national security.”

While 293 million people entered the United States during the year ending September 30, 2010, only about 3000 American citizens have had electronic devices searched upon their arrival back to the US in the past two years. That is certainly a small fraction of the arrivals, but civil rights lawyers are questioning whether these searches violate citizens’ Fourth Amendment rights protecting them against “unreasonable search and seizure.”

“[T]he government’s obligation is to obey the Constitution all the time,” says attorney Catherine Crump of the American Civil Liberties Union (ACLU). “Moreover, controversial government programs often start small and then grow,” after which “the government argues that it is merely carrying out the same policies it has been carrying out for years.”

One of Crump’s clients is Pascal Abidor, a student from Brooklyn who is studying to earn a Ph.D. in Islamic Studies at McGill University in Montreal. Last May, as he was entering the US on a train he was taking home from school, Abidor was locked in a cell and questioned for several hours about his political and religious views. Border patrol had become suspicious after seeing Arabic research and photos of Hezbollah and Hamas rallies. Though Abidor was released and sent home on a bus, his laptop was held for investigation for 11 days.

That was not an isolated incident for Abidor. In an attempt to avoid another experience like the one in May, Abidor had his dad drive up to bring him home last month. While this time he was only detained for 45 minutes, he and his father were ordered into a room to sit in silence with their hands on the table as officials searched the computer again. “I was told to expect this every time,” Abidor says.

Abidor is far from the only citizen who has experienced these types of searches and seizures. Crump, his attorney, is working with others from the ACLU in an attempt to get the courts to require “reasonable suspicion” for searching an individual’s computer or other electronic device, as they do for body cavity searches.

But the images and content of Abidor’s computer may be enough to qualify as “probable cause” to be detained on terrorist suspicions stemming from the 2001 attacks. Can US Customs and Border Patrol agents keep terrorist activity in check while preserving citizens’ Fourth Amendment rights? There doesn’t seem to be a clear answer.