Suspicionless Border Seizures of Electronic Files: The Overextension of the Border Search Exception to the Fourth Amendment

By Upright, Scott J. | William and Mary Law Review, October 2009 | Go to article overview

Suspicionless Border Seizures of Electronic Files: The Overextension of the Border Search Exception to the Fourth Amendment


Upright, Scott J., William and Mary Law Review


TABLE OF CONTENTS

INTRODUCTION

I. THE HISTORY OF THE FOURTH AMENDMENT AND THE
   BORDER SEARCH EXCEPTION
   A. The Border Search Exception
   B. Federal Appellate Court Decisions

II. THE CUSTOMS AND BORDER PROTECTION POLICY
   A. The Evolution of the CBP Policy
   B. The Current CBP Policy

III. SEARCH V. SEIZURE: WHAT RIGHTS ARE PROTECTED?
   A. The Seizure Clause and the Jacobsen Test
   B. Search First, Seizure Second

IV. Is COPYING COMPUTER FILES CONSIDERED A SEIZURE?
   A. The Jacobsen Test and the Seizure of
      Electronic Files
   B. Copying Electronic Files Under Katz and Berger
   C. Copying Electronic Files and the Proper
      Application of the Jacobsen Test

V. ADDITIONAL PROBLEMS CREATED BY THE CBP POLICY
   A. A Possible Fourth Amendment Loophole
   B. Racial and Religious Profiling
   C. Privileged and Confidential Material

VI. RECOMMENDATIONS

CONCLUSION

INTRODUCTION

In 2007, United States customs officials detained Zak Reed nine separate times as Mr. Reed returned from visiting his in-laws in Canada. (1) According to Mr. Reed, on one occasion, customs officials "completely trashed" his car, questioned him for nearly three hours, and broke his son's portable DVD player. (2) Mr. Reed also recalled one customs officer stating, "[W]e're really too good to these detainees. We should treat them like we do in the desert. We should put a bag over their heads and zip tie their hands together." (3) This treatment is especially shocking because Mr. Reed is a firefighter in his hometown of Toledo, Ohio, a twenty-year veteran of the Ohio National Guard, and customs officials never discovered anything incriminating during their examinations. (4) Ten years ago, however, Mr. Reed changed his name from Edward Eugene Reed to Zakariya Muhammad Reed, after he converted to Islam. (5) Following that change, Mr. Reed became the target of heightened scrutiny--including the detention of his cell phone--whenever he reentered the United States. (6)

Yasir Qadhi, a native Texan and a doctoral student at Yale University, has received similar treatment at the border. (7) In 2006, customs officials detained Mr. Qadhi, his wife, and his three children for five and a half hours while conducting a border search. (8) During the inspection, the officials took Mr. Qadhi's cell phone and copied all of the data it contained. (9) Two years later, in the spring of 2008, the FBI brought Mr. Qadhi back in for questioning regarding the contacts contained within the phone. (10) Mr. Qadhi was never found to be involved in anything illegal and has even served as a counter-terrorism consultant for the federal government. (11)

The stories of Mr. Reed and Mr. Qadhi are not isolated incidents. (12) In fact, the Association of Corporate Travel Executives conducted a survey in February 2008 and reported that seven percent of the executives surveyed stated "they had been subject to the seizure of a laptop or other electronic device" while reentering the country. (13) In July 2008, due to the growing concern over customs officials seizing electronic devices, the U.S. Bureau of Customs and Border Protection (the CBP) took the "unprecedented step" of publishing its policy. (14) This policy, entitled "U.S. Customs and Border Protection Policy Regarding Border Search of Information" (CBP Policy), was released in an effort to clarify the CBP's practices and procedures regarding the treatment of documents and electronic files during border inspections. (15) The CBP Policy appears to address situations like Mr. Reed's and Mr. Qadhi's and reads, "in the course of every border search, CBP will protect the rights of individuals against unreasonable search and seizure." (16) The purpose of this Note is to illustrate that, to the contrary, the CBP Policy does not protect against unreasonable seizures. In reality, the CBP Policy authorizes the suspicionless seizure and detention of any electronic device "for a reasonable period of time to perform a thorough border search. …

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