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    New York Times: Border Agents’ Power to Search Devices Is Facing Increasing Challenges in Court

    The New York Times reports on the issue of civil liberties at the United States border, including privacy rights:

    The government has historically had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.

    Several court cases seek to limit the ability of border agents to search, copy and even seize travelers’ laptops, cameras and phones without suspicion of illegal activity.

    “What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches. […]

    Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government’s interest in combating crime and terrorism. But Mr. Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography. […]

    Customs and Border Protection, part of the Department of Homeland Security, declined to discuss the policy in an interview, but a spokeswoman for the agency said in an e-mail: “Keeping Americans safe and enforcing our nation’s laws in an increasingly digital world depends on our ability to lawfully screen all materials — electronic or otherwise — entering the United States. We are committed to ensuring the rights and privacies of all people while making certain that D.H.S. can take the lawful actions necessary to secure our borders.”

    The statement also referred to the agency’s policyon border searches of electronic devices, which says that officers can keep these devices for a “reasonable period of time,” including at an off-site location, and seek help from other government agencies to decrypt, translate or interpret the information they contain. If travelers choose not to share a password for a device, the government may hold it to find a way to gain access to the data. […]

    While there is little public information about who is pulled aside for extra scrutiny, some people whose laptops have been searched say they feel they were selected based on their academic, journalistic or political pursuits.

    To learn more about the two ACLU cases, read the full article.

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