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Suspicious Behavior: Coming Home From Abroad

We learned in school that the Bill of Rights applies everywhere that is under the jurisdiction of the Stars and Stripes. The folks who run Customs and Border Protection seem to have missed class that day.

Either that or our mere arrival at a border crossing creates reasonable suspicion that we may have committed a crime.

These are the conclusions we can draw from the case of David House, who sued the Department of Homeland Security after various electronic equipment, including his laptop, was taken from him when he returned to the United States from Mexico in late 2010. House, who is a fundraiser for Chelsea Manning’s legal defense, maintains that no one asked to search his computer or mentioned a warrant allowing them to do so. Customs and Border Protection reported that it conducted 4,957 electronic media searches between October 2012 and August 2013.

“I think it’s important for business travelers and people who consider themselves politically inclined to know what dangers they now face in a country where they have no real guarantee of privacy at the border,” House said, according to The New York Times.

The Times observed that the courts have largely supported governmental authority to search electronic devices when anyone enters the country, whether or not they are citizens. In March, the Court of Appeals for the Ninth Circuit in California defined the limit of this power as “reasonable suspicion,” which the opinion characterizes as “a modest requirement in light of the Fourth Amendment.”

This requirement may sound familiar, especially to New Yorkers. That’s because this program is the border equivalent of the New York Police Department’s stop-and-frisk program, which requires the same standard. “Reasonable suspicion” doesn’t always work the way it should, though, whether on the streets of Jamaica, N.Y., or at nearby John F. Kennedy International Airport.

Federal officials have proceeded from the premise that if you present yourself at an immigration post, they have the right to seize, copy and examine the files on any equipment you may be carrying. Reasonable suspicion, in practice, seems to mean that you are traveling internationally while carrying a laptop or thumb drive. This isn’t just a search for contraband; it’s a search for information and evidence, without any of the legal protections for privacy and personal security that the Constitution affords. The snail mail equivalent would be for a Customs officer to seize, open, read and copy the contents of any envelope you happened to carry on your person or in your luggage.

All this supposedly has a law-enforcement purpose. After all, any traveler might be carrying child pornography or leaked military secrets, as far as border agents know. If the Department of Homeland Security has the authority to assume that more or less all international travelers are guilty until proven innocent, then the Fourth Amendment means nothing, at least when you are standing in line at Customs and Border Protection. Nor is this the first time that CBP agents have stretched their stated mission of protecting America from outside threats and unauthorized visitors.

Each passing week seems to bring new confirmation that the surveillance state of which Edward Snowden warned may be even worse than he made it out to be. In a system where Americans can be routinely detained every time they fly without the chance to know why or to appeal the decision, the continued erosion of privacy expectations and protection should concern American citizens greatly. It seems that the government has taken the position that traveling itself can constitute “reasonable suspicion” if officialdom wants get a look at your files.

Travelers deserve to have recourse for unjustified detentions and unwarranted intrusions. We ought to be having an informed public discussion about whether these highly intrusive but little-publicized practices provide enough extra security to justify the degree of invasion they entail. Proponents of stop-and-frisk presented a false choice between a program that violated citizens’ rights and the ability to keep the public safe. A thorough discussion of electronic media searches at the border might well reveal an equally false choice underpinning the practice.

On the other hand, if you think sidewalk stops and frisks are okay when applied to teenagers in Harlem, then you should have no objection to handing over your thumb drive to your friendly neighborhood customs agent. Just tell yourself it is for your own protection.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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