Suspicionless border seizures of electronic files: the overextension of the border search exception to the Fourth Amendment.

• Author: Upright, Scott J.

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." (17)

The Supreme Court has recognized that only the federal government can effectively patrol America's borders and has held that customs officials may conduct suspicionless border searches at the international border under the "boorder search exception" to the Fourth Amendment. (18) This exception applies to each of the four hundred million travelers that enter or reenter the United States each year. (19) The Fourth and Ninth Circuit Courts of Appeals have applied the border search exception and allowed suspicionless border searches of electronic devices, but no court, nor legal scholarship, has addressed the topic of suspicionless border seizures of electronic devices or files. (20)

This Note will argue that, in order to properly protect the rights of travelers, the Court should limit the border search exception and return to a privacy-based interpretation of the Fourth Amendment's Seizure Clause. This privacy-based interpretation was first articulated over thirty years ago in Katz v. United States (21) and Berger v. New York, (22) when the Court acknowledged that both tangible and intangible property could be seized. (23) Accordingly, the Katz/Berger test would require government officials to develop probable cause before copying electronic files. (24)

This Note articulates the proper Fourth Amendment analysis that should govern border seizures of electronic files and suggests ways to improve the current CBP Policy. To accomplish this, Part I describes the history of the Fourth Amendment, the creation of the border search exception, and reviews the federal appellate courts' decisions involving suspicionless border searches. Part II analyzes the CBP Policy, whereas Part III explains how the Supreme Court determines what constitutes a reasonable search as opposed to a reasonable seizure. Part IV further examines the Katz/Berger test and demonstrates that even under the Court's current property-based test, the CBP Policy wrongly permits unreasonable seizures. Part V investigates additional problems that the CBP Policy does not properly address, such as racial and religious profiling and the disclosure of privileged information. Finally, Part VI analyzes proposed legislation and outlines recommendations that should be implemented in order to strike the proper balance between governmental interests and the individual property and privacy rights of travelers entering or leaving the United States. Ultimately, this Note illustrates that the CBP Policy stretches the government's authority too far. Suspicionless seizures are not within the Supreme Court's border search exception and, thus, are unconstitutional under the Fourth Amendment. (25)

1. THE HISTORY OF THE FOURTH AMENDMENT AND THE BORDER SEARCH EXCEPTION

   The driving force behind the Fourth Amendment can be traced to the American Colonies and England's use of general warrants to search colonial homes for the evidence of any crime. (26) Accordingly, the Fourth Amendment has been described as "the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England." (27) The Supreme Court, however, has not translated the Fourth Amendment "into a general constitutional 'right to privacy,"' but the Court has held that the amendment does protect "individual privacy against certain kinds of governmental intrusion." (28)

   In order to determine which governmental intrusions (searches or seizures) are unconstitutional, there is a two-part reasonableness test. First, it must be "reasonable to conduct the particular search" or seizure. (29) Second, the search or seizure must be conducted in a reasonable manner. (30) Warrantless searches are "per se unreasonable," except under special circumstances. (31) For instance, at the international border, warrantless and suspicionless searches have been deemed reasonable and allowed under the border search exception. (32) This exception, however, was never meant, nor has the case law ever extended it, to allow the government to conduct warrantless and suspicionless seizures of property. (33)

   1. The Border Search Exception

      The border search exception originated in the same Congress that passed the Fourth Amendment and, less famously, passed the Act of July 31, 1789, which allowed border officials to conduct warrantless searches of ships or vessels entering the United States. (34) Thus, the drafters of the Fourth Amendment foresaw a border exception to the warrant requirement. (35) This exception is based on the "recognized right of the sovereign to control ... who and what may enter the country." (36) As a result, the exception allows customs officials to conduct warrantless searches of individuals entering the United States at the border, (37) or its "functional equivalent," such as an international airport. (38)

      Originally, the Supreme Court's recognition of the border search exception focused on the government's property interest in taxing imports. (39) Accordingly, in Boyd v. United States the Court stated "in the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment." (40) The Court based this decision on the distinction between the search of a citizen's home, where the government has little interest, and the search and seizure of goods being imported into the country, where the government has a substantial property interest in the taxing of imports. (41)

      Nearly a century later, the Supreme Court explicitly recognized Congress's broad power to regulate the border and prevent prohibited material from entering the country in United States v. Ramsey. (42) The Court stated:

      Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has...