Border Searches Discussion

Beyond Our Borders

Border Searches of Your Electronic Devices

Every year, tens of millions of travelers arrive at U.S. borders, where they are subject to a search.

Of these travelers, about 12 million undergo a secondary screening, and approximately five

thousand of these screenings involve an electronic device. About three hundred

devices—laptops, tablets, and smartphones—are sent to the Immigration and Customs

Enforcement forensics laboratory in Fairfax, Virginia, for further examination.

The U.S. government has historically had broad power to search travelers and their property

when they enter this country. That power includes the right to inspect papers and other physical

documents in the possession of anyone entering the United States, including U.S. citizens.

Increasingly, however, instead of being carried in physical form, thousands of documents are

carried on the hard drives of laptop computers, in tablets, or in smartphones. Does the

government’s power to conduct border searches give it the right to rummage through all of the

data on an electronic device?

A Legal Challenge to Extensive Searches of Electronic Devices

When Pascal Abidor, a Ph.D. student who has dual U.S. and French citizenship, traveled by train

from Canada to New York, U.S. Customs and Border Control agents pulled him aside and

required him to log on to his computer. They then examined much of its contents. Abidor was

released after a few hours, but the Department of Homeland Security kept his laptop for eleven

days.

Abidor challenged the search. His complaint alleged that the suspicionless search of U.S.

citizens’ electronic devices at international borders violates their constitutional right to privacy.

The lawsuit was dismissed when a federal court concluded that Abidor lacked standing to

challenge the government’s border search policies.

Routine versus Forensic Searches of Electronic Devices

In another case, Ali Saboonchi and his wife were stopped at the border on returning from a day

trip to the Canadian side of Niagara Falls. Saboonchi was a dual citizen of the United States and

Iran. His name had been flagged in the Homeland Security database because of information from

the FBI concerning inquiries he had made about specialized technology with possible medical or

military applications. Customs officials performed a secondary search of Saboonchi’s vehicle

and questioned him and his wife. The officials allowed the couple to reenter the country, but

seized two of Saboonchi’s smartphones and a flash drive and sent them to Virginia for further

testing.

A week later, customs officials returned Saboonchi’s electronics. The government then filed

criminal charges against Saboonchi in federal court for violating U.S. export restrictions on trade

with Iran. The indictment alleged that he had sold specialized equipment to a company in the

United Arab Emirates that was linked to a company in Iran. His digital devices had contained

contact information about the companies involved, along with other evidence.

Saboonchi argued that the evidence had been illegally seized and that the information obtained

from his electronic devices should be excluded from trial. The court recognized a difference

between routine border searches and forensic border searches, which involve experts using

specialized software. Forensic searches, according to the court, require reasonable suspicion.

Nevertheless, the court concluded that the government had reasonable suspicion that Saboonchi

was involved in violations of export restrictions.

Critical Thinking

● What are some steps that businesspersons can take to avoid issues at the border with

respect to the contents of their electronic devices?