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US Customs digital searches could violate the 4th amendment

Posted at 22 February 2011 11:00 CET by wconeybeer

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.

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There are 6 comments

MyCE Resident
Posted on: 22 Feb 11 15:54
    The US Supreme court & I disagree on who should have the rights in the US Constitution. I feel only US citizens are entitled these rights . So if any searched were US citizens I would say this search without a specific search warrant does violate their Forth amendment rights. If the one being searched is not a US citizen they have not earned the rights protected by the US Constitution .
    This is not to say they shouldn't have basic human rights but a much lower standard than those in the US Constitution.
    A good base to go by would be the same rights a US citizen would have in the country of the persons that are being searched.
    The US government will even violate citizens rights if given the opportunity . Guantanamo is proof of that. As are the many cases of violations that come before the US Supreme court every year.
    The Patriot Act should have gone before the US Supreme court before the ink dried & found unconstitutional.
    MyCE Resident
    Posted on: 22 Feb 11 19:41
      Thanks to the Patriot Act your Constitutional Rights can be violated all day long.
      Mr. Belvedere
      MyCE Resident
      Posted on: 25 Feb 11 10:16
        Originally Posted by cholla
        The US Supreme court & I disagree on who should have the rights in the US Constitution.
        I wonder who will win.
        MyCE Resident
        Posted on: 25 Feb 11 15:52
          Originally Posted by eric93se
          Thanks to the Patriot Act your Constitutional Rights can be violated all day long.
          That's so true and those touting the constitution might want to review the patriot act the helped pass but then they will claim constitution rights again. But patriot act tromps constitution nowdays. So if anyone wants consitutional rights back they should repeal patriot act and really this time address the security concerns and not paper over the problems we really face.
          MyCE Resident
          Posted on: 25 Feb 11 16:22
            I have been against the Patriot Act from its start.The elected representatives that I may have help elect sure didn't represent me when they voted for it. So I don't feel I helped pass it.
            My view is the hell with security freedom is much more important . The USA was started by people willing to trade their security & there lives for freedom .
            So if some are killed to allow the fought for freedom then that's the price of freedom. This is something that seems to be forgot.
            Just because the US Supreme Court has the power to make unConstitutional decisions doesn't mean they win. What it does mean is all US citizens lose until we have had enough & revolt to put a stop to it.
            This is a quote I'm fond of:
            here in western lands men were fighting ,again the age-old struggle for freedom and for civilization, which is one that always must fought for. The weak, and those unwilling to make the struggle, soon resign their liberties for the protection of powerful men or paid armies; they begin by being protected, they end by being subjected.
            MyCE Member
            Posted on: 28 Feb 11 13:01
              There are several different issues here. One, deos the government have the right to search anything comming into or leaving the country, apperantly this is within the authority of the US Customs service, and every country on the planet does it. Two, under this aurhority, do they have the authority to search electronic devices for illegal items. Well, again apperantly that is a yes. There is quite a bit of software that is illegal to export, although other than kiddie porn, there isn't a lot that is illegal to import by itself. Third, however, is where the trouble begins, can they search for things that are not a crime to possess (like word documents) and examine them for evidence that a crime has or may be committed? I don't think this is permitted, and they indicate that themselves on their website:
              "The authority to delay and speak with travelers derives from the United States Code (section citations below) enables CBP to prevent the entry of persons who are inadmissible under the Immigration and Nationality Act, and to prevent the smuggling of merchandise, including narcotics and other contraband items, into the United States.". They do not need to remove anything from a computer do do this, they need to run a simple program that looks for very specific things, if they need to do anything at all. The government has proven time and time again, they cannot be trusted with any latitude at all. They will abuse any authority and use any imformation they seize for any purpose they want regardless of the legality. Any inside business information may end up being used to illegally make money purchasing stocks, anything possibly incriminating will be used to start an investigation, if the crime is on the political hot list. When this gets to the Supreme Court, it will be stopped if Congress doesn't act first. There is no way they will allow the seizing of a lawyer's laptop when they can't even look at papers. They are certainly overreaching on siezing of data.

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