The black letter rule is clear, that when you cross a national border, you and your possessions are subject to search without regard to cause.  What has been forgotten is why this is the rule, and reflects another instance of remembering the rubric while forgetting the rationale. 

The rule was meant to stop the introduction of dangerous items, like plants or animals that could carry diseases or had no natural enemies in our environment to stem their spread. Then there was the need to collect taxes on items purchases elsewhere, justifying a search to make sure no one was sneaking anything in without giving Uncle Sam his cut.  And finally, there was the smuggling of contraband. At the time, these rationales were accepted as a sound basis for the rule, and so the rule was born.

But when they seize your computer at the border, they aren’t looking for invasive species.  Maybe their looking to see what nasty images you have on your hard drive, which may fall outside the rationale as a means of law enforcement, but many people wouldn’t be too troubled by that.  Or maybe they are looking for seditious people who think thoughts and spread ideas that the government doesn’t like. Maybe border seizures of electronics are an opportune method of identifying, harassing or controlling people who are a thought threat.

From the New York Times :

A laptop belonging to Lisa M. Wayne, a criminal defense lawyer, was searched after she returned from a trip to Mexico.

Ms. Wayne said her main concern was the information about clients’ cases stored on her laptop: she is a past president of the National Association of Criminal Defense Lawyers, which is a co-plaintiff in the Abidor suit, along with the National Press Photographers Association. But at the time of the search, she was unaware of her rights and felt pressured to hand over her computer.

“It was very clear to me that the longer I objected or interrogated them, the longer I was going to be detained, and I had a connecting flight,” she said. “It’s an intimidating experience. It was not consensual other than, you comply with the rules.”

There are numerous suits pending against the government challenging the seizure of electronics, like laptops, cameras and cellphones, without any suspicion of criminal activity.

A decision in one of those suits, Abidor v. Napolitano, is expected soon, according to the case manager for Judge Edward R. Korman, who is writing the opinion for the Federal District Court for the Eastern District of New York.

In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after he was handcuffed and detained at the border during an Amtrak trip from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days.

The contention is that while the right to be free of baseless searches ends at the border, the First Amendment does not, and these seizures impair the right to freedom of expression by seizing based on thought, ideas, images, writings, content. The 4th Circuit ruled against this argument in United States v. Ickes, 2005, but that was a child porn case, rather than political expression. But even the Times has drank the government issued cool-aid:

Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government’s interest in combating crime and terrorism. But Mr. Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography.

See what they did there? Warrantless border searches weren’t allowed to combat crime or terrorism (particularly noting that nobody thought much about terrorism until 9/11).  Same with kiddie porn, a new claim for old law, one that had absolutely nothing to do with the birth of border searches. 

Yet if a reporter was to only consider the government’s press releases and court decisions over the past decade, it would be understandable why they would be unaware of the original rationale for warrantless border searches and accept revisionist history.

Curiously, caselaw has essentially ignored the genesis of warrantless border searches in favor of such facile assertions as “well-settled law.”  And indeed, it is extremely well-settled :

Authorized by the First Congress, [Act of July 31, 1789, ch.5 §§23-24, 1 Stat. 29, 43 (current version at 19 U.S.C. §§482, 1582)] the border search exception has a history as old as the Fourth Amendment and obtains its broad power from Congress’s authority to regulate commerce with foreign nations and to enforce immigration laws. 

However, reliance on trite phrases has allowed courts to divorce the justification from the rule, and thus used a rule to sweep in newfound justifications where they were never part of the original basis. It may well be that the Supreme Court, if it was to consider the rationale for warrantless border searches today with a blank slate, would happily conclude that the 4th Amendment’s warrant requirement was just too much trouble, but the rule hasn’t been revisited since the invention of computers, where people now carry their lives and most intimate secrets with them wherever they go.  They aren’t search for infected coconuts anymore.

The search of laptops crossing borders changes everything, and creates a compelling need to rethink whether warrantless border searches in the age of electronics changes the balance.  Long-settled rules no longer cut it, and it’s remarkable that so few recognize the seismic shift in intrusiveness that’s happened with barely a whimper.