Next he'll want to look at your phone.

Photographer: Robyn Beck/AFP/Getty Images

Your Privacy Doesn't Matter at the Border

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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.

The broad border-exception doctrine is outdated -- and either Congress or the Supreme Court should dial it back with respect to electronic devices. There is indeed a long-standing tradition that the government can search you and your belongings at the border to look for contraband. But in an era when electronic files cross borders constantly and instantaneously, it makes no sense to allow the government to search phones or computers at the border. The threat isn’t only to journalists trying to protect sources. It’s for anyone who cares about privacy of any kind.

According to the Supreme Court, the exception for border searches goes back all the way to the first Congress -- the same one that approved the Bill of Rights that James Madison drafted. The court’s reasoning was introduced in 1886, in a case called Boyd v. U.S. The court pointed out that Congress in July 1789, before it passed the Bill of Rights, it enacted a statute that allowed customs officers to search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed.”

The 1886 court concluded that “as this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and they are not embraced within the prohibition of the [Fourth] Amendment.”

Right away you can see that there’s a flaw in using that logic to create an absolute exception to the Fourth Amendment in the contemporary electronic world. The original customs statute applied to something a customs officer has a good reason to search, namely goods on which duties are owed. It did not contemplate a blanket exemption for all searches. What’s more, given that the law was passed before Madison pressed the Bill of Rights on Congress, it’s doubtful whether it provides real evidence of what Congress thought about a warrant requirement it hadn’t yet adopted.

Yet the Supreme Court has treated the constitutional exception as absolute. As recently as 1977, it said that such searches “are reasonable simply by virtue of the fact that they occur at the border.” Of course, Homeland Security must have separate statutory authority to make the search. But so far no court has held that the department lacks the legal authority to search laptops or phones at the border.

The unlucky teenager case shows how far this exception now goes. Two judges of the U.S. Court of Appeals for the 6th Circuit held that it didn’t even matter that the kid hadn’t left the country because “routine searches of vehicles at the border do not require a warrant or any level of suspicion regardless of whether the motorist intends to cross the border or has arrived at the border area inadvertently.” The judges also pointed out that the government can search you when you’re leaving the country, so it made no sense to limit the search to people who had actually left.

A third judge thought the exception should be interpreted more narrowly so as to exclude someone who never intended to leave the country and in fact did not. But even that judge admitted that this wasn’t clearly established law.

The lesson from all this isn’t just that you approach a border at your own risk. It’s that major exceptions to our basic liberties should be interpreted narrowly, not broadly. Searching a reporter’s phone or anyone’s data isn’t within the government’s plausible set of purposes.

There are two ways to fix the problem. One is for Congress to pass a law that prohibits such border searches, as was proposed unsuccessfully in 2008 and 2009.

If Congress won’t act, though, it’s up to the Supreme Court to repair the damage it did in 1886 and 1977. It doesn’t need to overturn its precedent, just narrow it to cover the circumstances that Congress actually had in mind in 1789, namely border searches for goods being shipped illegally or without duty. That doesn’t include data. It would be a big improvement in constitutional doctrine -- and civil liberties.

  1. The Homeland Security guidelines for border searches actually say that “other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and Customs and Border Protection policy.”

  2. The Electronic Frontier Foundation has helpfully gathered some cases here at footnote 1.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net