The Fourth Amendment Doesn’t Apply At The Border

The Fourth Amendment Doesn’t Apply At The Border



The Department of Homeland Security decreed your Fourth Amendment rights do not apply near the border, and by near the border, I mean within 100 miles of it:

The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.

“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/civil liberties benefits,” the executive summary said.

The memo highlights the friction between today’s reality that electronic devices have become virtual extensions of ourselves housing everything from e-mail to instant-message chats to photos and our papers and effects — juxtaposed against the government’s stated quest for national security.

The President George W. Bush administration first announced the suspicionless, electronics search rules in 2008. The President Barack Obama administration followed up with virtually the same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data.

According to legal precedent, the Fourth Amendment — the right to be free from unreasonable searches and seizures — does not apply along the border. By the way, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.

Civil rights groups like the American Civil Liberties Union suggest that “reasonable suspicion” should be the rule, at a minimum, despite that being a lower standard than required by the Fourth Amendment.

“There should be a reasonable, articulate reason why the search of our electronic devices could lead to evidence of a crime,” Catherine Crump, an ACLU staff attorney, said in a telephone interview. “That’s a low threshold.”

It’s rare that I find myself in agreement with the ACLU, but this is one of those times.