Courts have long recognized the federal government’s robust power to inspect people and goods entering the country. After all, the very foundation of national sovereignty is a nation’s ability to protect its borders. Until recently, however, this “border search” power was reasonably considered to be limited to physical searches necessary to discover illegal contraband attempted to be brought into the country; inspecting a traveler’s suitcases, for example.
The proliferation of electronic communications devices -- personal computers, iPads, Blackberries, and what not -- and the potential treasure trove of information contained in such devices, however, has pushed the government to assert the power and the right to inspect such devices and anything stored thereon, under the “border search” provision.
In Uncle Sam’s view, because evidence of potential criminal activity can be found in a laptop computer’s hard drive just as in the tourist’s suitcase following a visit to Mexico, the former enjoys no more protection against government snooping than the latter. This limitless perspective, and the vast power grab reflected in it -- based on nothing more than the fact that a person has travelled abroad and is returning to their home -- is preposterous. More important, this assertion seriously undermines the Fourth Amendment’s guarantee against unreasonable searches and seizures.
The average American returning from a trip abroad likely -- and understandably -- assumes the contents of his or her electronic device does not come close to meeting the threshold of “criminal” activity, such as would give a government agent the right to seize and peruse their iPad just because they are returning from a vacation. Government agents at our borders and ports of entry, however, are undeterred by such common sense and historically-sound notions of privacy.
In Napolitano’s view, just because an iPad is being carried by an American student returning from a semester studying in London, instead of returning to New York from Los Angeles, it becomes fair game for her agents to seize, inspect, download and retain data; all without any suspicion whatsoever the device’s owner has engaged in any illegal activity.
The “exhaustive,” three-year study conducted by the Department of Homeland is as flawed as most government “reports.” Unfortunately, unlike many other such projects, this one does more than just cost American taxpayers money; it comes at a heavy price to their fundamental, God-given right to privacy guaranteed by the Fourth Amendment to our Constitution.