By: Brian Harris

The Department of Homeland Security has recently released a response to an ACLU challenge about its border patrol policies.


The ACLU challenged the DHS’s policy of conducting suspicionless, warrantless searches of personal electronics within an area 100 miles from the border around the entire United States.  These searches raise concerns about a possible government infringement of our Fourth Amendment rights.


The ACLU refers to this 100 mile stretch of land as the “Constitution-free zone.”   The DHS has insisted that these searches were a necessary function of ensuring national security.  These searches raise increasingly relevant issues of privacy as improvements in technology encourage people to convert more of their lives and personal information into digital media.  What begins as a seemingly simple search of a laptop could actually be an incredibly intrusive collection of personal data.


The DHS takes the position that there is long standing authority to search recently purchased merchandise at the border for incoming and going travelers.  They claim that these searches are an obvious extension of that philosophy.  They also take the position that requiring reasonable cause would directly interfere with the operational effectiveness of border control thereby creating a risk to national security.


More importantly, the 100 mile stretch of land inland from the border encompasses approximately 200 million Americans, which is 2/3 of the population.  According to the Congressional Research Services, border patrol agents must have a “reasonable suspicion” of criminal activity.  They say that a better case for the “Constition-free zone” should be targeted at airport security where they can search your belongings even without any probable cause.
The Supreme Court has not taken a case about the warrantless search of electronics at the border.  It seems as though until that occurs, the government’s position on this issue will remain the same.