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In 2014, you’d be hard-pressed to find someone travelling without a laptop or smartphone, whether it’s professionals toiling over PowerPoint graphs on planes or teenagers scrolling through Instagram in the backseats of cars.
So when a reader asked PolitiFact to vet a Facebook post about travelling across U.S. borders with electronics, we were intrigued.
"If you live within 100 miles of the United States border, then you're in what is being called, the 'Constitution exemption zone,’ " read the post on a page called World Must Wake Up. "U.S. District Judge Edward Korman ruled that authorities along the U.S border could seize and search laptops, smartphones and other electronic devices without a warrant (direct violation of the Fourth Amendment)."
PolitiFact wanted to dig deeper into the notion of a Constitution exemption zone. The page’s creator didn’t respond to our request for comment.
The Facebook post referenced a case in the Eastern District of New York, Abidor vs. Napolitano. U.S.-French dual citizen Pascal Abidor had his laptop searched and confiscated crossing into the United States from Canada. His laptop was returned 11 days later, when he found evidence that his personal files were searched. On Dec. 31, a federal judge dismissed the case, which followed a trend of previous cases regarding electronic privacy at U.S. borders.
We learned that the loose rules for border searchers the post mentioned didn’t start here, or in the digital age at all.
The history of border searches
Loose search regulations at the border are old news. Really old news. In 1789, the First Congress passed an exception for border searches that authorized federal officials to search people crossing the border without a warrant issued after proof of probable cause.
A couple of years later, the Fourth Amendment became law. That protects citizens from most searches except when a warrant is obtained by proving probable cause. Today, the exception for searches near borders is a part of the Immigration and Nationality Act. It’s not considered an exception to the Fourth Amendment as a whole, just to the warrant requirement.
At an international border or the functional equivalent of one (for example, an inland international airport), officials can search a person and his or her possessions without reasonable suspicion of criminal activity.
There’s a similar procedure called an extended border search, where almost all the same rules apply. Within 100 miles of an international border, officials can search a person and his or her possessions, but here they have to prove reasonable suspicion, a lower threshold than probable cause.
Now, there’s a reason border officials have historically had more wiggle room to enforce their authority than other federal officials. The government wants to ensure that contraband, like illicit drugs, don’t enter the country.
There are consequences for officers who abuse these privileges.
"There’s some pretty stiff administration that is taken against the officer and the agency," said Victor Manjarrez, a border security and immigration professor at University of Texas at El Paso. "That’s a potential civil rights violation. It’s not taken lightly at all."
The American Civil Liberties Union first coined the term "Constitution-free zones."
Historically, the ACLU created the term Constitution-free zones in reference to stops near the border for reasons other than criminal activity, like random inquiries on highways about immigration status. They don’t use that term in relation to inland electronics searches.
ACLU staff attorney Catherine Crump said the Facebook post on electronic privacy takes their argument (now many years old) out of context. They’ve filed two lawsuits regarding electronic searches at borders, including Abidor vs. Napolitano.
"We don’t know of any instances in which the government has taken advantage of this suspicionless electronic device search policy to search people who aren’t at the functional equivalent of the border," Crump said.
How technology fits in
While the border search exception isn’t new, it’s safe to say technology has evolved over the last few centuries, and that’s what makes the more recent cases distinctive.
Before travelers carried phones and laptops, a search of someone’s belongings could only go so far. But technology gives border officials information that reaches far beyond what a person has physical access to.
"The notion of these electronic searches is, in and of itself, quite dramatic," said Fred Cate, an Indiana University cybersecurity professor. "Now, if you can search the laptop or the cell phone, you’re probably getting access to all of their emails, all of their business records."
Officials can seize electronics and hold them for several days under the law. Of course, individuals and businesses can take precautions to limit or entirely prevent border officials from accessing private data.
Manjarrez predicted that the issue would eventually end up in the Supreme Court, but for now electronic searches are here to stay.
A Facebook post said a judge's order means there's a "Constitution exemption zone" if you live "within 100 miles of the United States border." There is a border search exception, which long predates the district court ruling, that allows officials at or near borders to search people and their possessions without obtaining warrants. Experts say that’s not an exception to the whole Fourth Amendment. It's certainly not an exemption to the entire Constitution, which covers a wide range of rights, like freedom of the press and freedom of religion.
The post has an element of truth but takes information out of context and requires a good deal of clarification. We rate this claim False.
American Civil Liberties Union, "Fact sheet on U.S. ‘Constitution free zone,’ " Oct. 22, 2008
American Civil Liberties Union, "Know your rights: Constitution free zone -- map," accessed Jan. 8, 2014
Congressional Research Service, "Protecting the U.S. perimeter: border searches under the Fourth Amendment," June 29, 2009
Electronic Frontier Foundation, "Defending privacy at the U.S. border: a guide for travelers carrying digital devices," Dec. 20, 2011
Email interview with Hanni Fakhoury, Electronic Frontier Foundation staff attorney, Jan. 9, 2014
FindLaw, "19 U.S.C. § 1582," accessed Jan. 10, 2014
New York Times, "District judge upholds government’s right to search electronics at the border," Dec. 31, 2013
Phone interview with Fred Cate, Indiana University Center for Applied Cybersecurity Research director, Jan. 8, 2014
Phone interview with Catherine Crump, American Civil Liberties Union staff attorney, Jan. 10, 2014
Phone interview with Victor Manjarrez, University of Texas at El Paso National Center for Border Security and Immigration associate director, Jan. 8, 2014
Wired, "ACLU assails 100-mile border zone as Constitution-free," Oct. 22, 2008
Wired, "Court upholds willy-nilly gadget searches along U.S. border," Dec. 31, 2013
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