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At border and airports, agents need suspicion to search devices

If you have been annoyed at having your smartphone searched at the airport, you'll be interested to hear this. It turns out that agents need reasonable suspicion that you're involved in something illegal before they can perform such a search.

Agents from ICE and the Customs and Border Protection (CBP) service have been routinely searching people's electronic devices at the border, including in international airports. They have had a policy of performing these searches without cause, looking for things like counterfeit media and child pornography. Now, a federal judge has ruled that policy unconstitutional.

The Fourth Amendment prohibits unreasonable searches and seizures

The question came up because ICE and the CBP have increasingly been searching people's computers and cellphones, without suspicion of any crime, at borders and in airports. The agencies reasoned that, since they have a "paramount" interest in border security, the Fourth Amendment simply did not apply. Therefore, they believed they could simply go on "fishing expeditions" through people's devices.

The ACLU and the Electronic Frontier Foundation sued on behalf of 11 travelers who had been searched even though they had done nothing suspicious. They included, among others, a military veteran, journalists, a NASA engineer and a computer programmer. Some of the plaintiffs were minorities or Muslims.

The plaintiffs argued that the Fourth Amendment should apply just the same whether a person is in a border zone or not. In most cases, law enforcement is required to show probable cause to believe someone is involved in criminal activity before they can search that person's belongings. When circumstances allow, this would generally mean they have to get warrants before searching.

The federal judge who heard the suit balanced the two arguments, ultimately requiring what is called "reasonable suspicion" that someone has committed a crime before the search would be constitutional. Probable cause requires evidence, whereas reasonable suspicion requires simple suspicion, but that suspicion must be reasonable and articulable, meaning it can't be based on racial profiling or a hunch.

So, ICE and border agents do not have to get a warrant before they search your things. But they do have to have a reason that would hold up in court.

"By putting an end to the government's ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don't lose our privacy rights when we travel," commented an attorney for the ACLU.

If you were charged with a crime based on a border or airport search, you should immediately contact an experienced criminal defense attorney. If the search was unconstitutional, your charges could be greatly reduced or dismissed altogether.

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