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Noah Feldman

Your Privacy Doesn't Matter at the Border

The first Congress couldn't have imagined iPhones, but it allowed Homeland Security agents to search them.
Next he'll want to look at your phone.

Next he'll want to look at your phone.

Photographer: Robyn Beck/AFP/Getty Images

Wall Street Journal reporter Maria Abi-Habib made waves in journalistic circles last month after she posted on Facebook that Department of Homeland Security officials tried to seize her phones as she entered the U.S. at Los Angeles International Airport. What was striking about her post was that Homeland Security’s demand (which it eventually gave up) was probably lawful  and certainly constitutional. Under established U.S. Supreme Court precedent, there is an exception to the Fourth Amendment privacy right when you are at the border entering or leaving the country.

Last week, a federal appeals court restated the near-absolute nature of that constitutional exception in the case of a teenager who got lost near the Canadian border on his way to summer camp and was directed by Homeland Security officials to enter a line of cars returning from Canada, even though he hadn’t crossed the border. A dog sniffed marijuana in a backpack in the kid’s trunk, and he was arrested. The court held that the search was permissible under the border exception -- even though the dopey teen never actually left the country.