Border Search

Civil liberties groups chip away at the border's "Constitution-free" zone

Howard Wesley Cotterman is an unlikely hero. In fact, most folks would find the convicted child molester to be scum-sucking human detritus.

But if you frequently cross the U.S.-Mexico border toting computers or smartphones, Cotterman may be the best friend you never knew you had.

In 2007, Cotterman was returning from Mexico through the crossing at Lukeville, Ariz., when agents with U.S. Customs and Border Protection checked his name against a nationwide database. When it flagged Cotterman's 1992 conviction on seven counts of child molestation, agents ushered the man and his wife to a secondary inspection area. A vehicle search turned up three digital cameras and two laptops.

A cursory inspection found no child porn on the electronic equipment. But rather than returning the computers to Cotterman, agents dispatched them to Tucson, where a forensics investigation turned up 75 images of child porn.

From a judicial perspective, however, the heinousness of this material was not at issue. Rather, the point was whether authorities had the right to search Cotterman's computers without a warrant to begin with.

In March, the 9th U.S. Circuit Court of Appeals said they did—but only within certain parameters. "A person's digital life ought not be hijacked simply by crossing a border," said Judge Margaret McKeown, writing for the majority.

Three months later, civil rights advocates and border activists are waiting to see how CBP responds to this critical yet limited victory.

Among those keeping tabs is Catherine Crump, a New York-based staff attorney with the ACLU. She says that some restraint on the government's near-absolute power at the border was needed. "It would be difficult to imagine a policy any broader than the one that Customs currently has for searching electronics devices. And given the timidity of the courts for placing even limited restrictions on border searches these days, the net effect is that there's no one really standing up for your constitutional rights at the border."

That makes the 9th Circuit decision pivotal. It still allows for cursory searches of electronics—perhaps compelling you to switch on your computer and type in a password—without the requirement of reasonable suspicion.

"But if law enforcement goes further," says Crump, "and makes a forensics investigation of your laptop, which involves making a copy of everything on the computer and then using specialized software to go through in a much more detailed and sophisticated way and find deleted files, then law enforcement needs to have reasonable suspicion in order to carry out that kind of search."

Such probes can be interminable; one of Crump's clients had his laptop confiscated for six full weeks, and information gleaned from it was boundless. "This issue is particularly salient if you're the type of person who has other people's information on your computer," she says, "if you're a doctor who has patients' information on your computer or a lawyer who has clients' information on your computer."

While this ruling didn't get Cotterman off the hook—the court held that government agents did have reasonable suspicion in his case—at least it led to a full appraisal of CBP policy. "This is the first federal appeals court decision to recognize any limits on the government's power to conduct searches of electronics devices at the border," says Crump.

That means the border is no longer a "Constitution-free zone," where Fourth Amendment protections against unreasonable search and seizure do not apply.

We contacted CBP for comment on these searches and the recent court decision. But once again—despite having a small army of handsomely paid, taxpayer-funded public information officers—the agency failed to provide me or the public with any explanation of its position on this matter.

The agency's pattern of silence could point to a disturbing level of ineptitude. Or perhaps it's just run-of-the-mill stonewalling, which might be traced to a leaked, Feb. 1 policy directive from William Brooks, CBP branch chief for the Southwest Border Media Division. "We will no longer provide interviews, ride-alongs, visits etc. about the border, the state of the border and what have you," Brooks wrote to his staff. "Should you get a request, inform the reporter that you will see what you can do and get back to them. Then send it to me.

"On Monday or Tuesday or someday," Brooks continued, "we will have a statement that we will provide in lieu of these other activities."

With regard to CBP, it appears that "someday" usually never arrives.

However, in February the Department of Homeland Security, parent agency of CBP, did release a "civil rights impact assessment" regarding warrantless searches of electronic devices. Not surprisingly, it found that the government's "current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/liberties benefits."

According to CBP, between October 2011 and August 2012, nearly 12 million travelers underwent secondary screenings when entering the country. Nearly 5,000 of those involved searches of electronic devices.

But the courts—long deferential to the government's need for such searches—are finally taking a harder tack. Prodding them along are legal challenges such as Abidor v. Napolitano. The case concerns Pascal Abidor, an Islamic studies doctoral student who sued the government after he was detained and handcuffed, and had his laptop seized for 11 days at the Canadian border.

Mason Clutter is national security counsel for the National Association of Criminal Defense Lawyers in Washington, D.C. Her organization is both co-counsel and plaintiff in the Abidor case. "It really is a challenge to the overall policy, she says. "We want to enjoin Customs officials from conducting these suspicion-less searches of laptops and electronic devices."

Before the Cotterman decision, says Clutter, there was no requirement that Customs agents "even have reasonable suspicion that a crime could be committed, let alone the concept of probable cause that a crime was likely to be committed. It was just Customs and Border Patrol policy that anything coming across the border was subject to this kind of search.

"But the Fourth Amendment does not die at the border. ...The government does not have absolute authority to search anything and everything for as long as they want, and to keep all the private information that they gain, without first establishing that they have a reason for accessing that information."

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