Yesterday, the ACLU released documents that shed light on how the government’s use of its “border search authority” infringes on the Fourth Amendment. The ACLU’s article details the story of David House, a person who worked to raise money to support Bradley Manning. Upon returning from vacation at Chicago’s O’Hare Airport, House was detained and, among other things, his laptop and other electronic devices were searched. Most of House’s items were kept by DHS agents for several weeks as they were searched for information, and copies were made of his files to search them for months after they were eventually returned. The ACLU settled House’s case in May of this year.
In 2004, the fourth circuit affirmed the government’s “border search exception” in United States v. Ickes, and held that an extensive warrantless search of a vehicle was permitted at a border crossing even if it would be prohibited elsewhere. Finally, in 2012, the ninth circuit weakened the border search exception in United States v. Cotterman by holding that property – including electronic property – is not subject to search without at least reasonable suspicion. In his ruling, Judge Tallman stated that the government cannot seize property and hold it for “weeks, months, years on a whim.”
According to statistics available from the Department of Homeland Security, the government has conducted searches on the electronic devices of 4,957 people in a period of less than one year, and this is what they’re willing to admit. Unfortunately, there is no way of knowing how many searches are conducted every day and whether or not they are for legitimate reasons. Hopefully, as the revelations continue about the government’s disregard for the Fourth Amendment, more courts will agree that searches of electronic devices are extremely intrusive and are not permitted without either a warrant or an exception to the warrant requirement.