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Border Searches of Digital Devices Facing Closer Scrutiny

By Deanne Katz, Esq. | Last updated on

Before holiday travel gets into full swing, it might be good to warn your clients that their laptops and digital devices may be subject to a border search if they travel abroad.

That's true for now, though it may not be the case for long.

Border searches are an important part of national security, and traditionally involve a search of both people and property entering the United States. For tech-savvy travelers, that also means their electronic devices can sometimes be seized and searched. But an upcoming court ruling could change that.

The American Civil Liberties Union is currently representing plaintiffs in two lawsuits challenging laptop border searches, and one of the decisions is expected in the coming days or weeks, The New York Times reports.

The suit, Abidor v. Napolitano, started last May when Pascal Abidor was detained coming back into the United States from Canada and his laptop was taken and searched, and wasn't returned for 11 days. He challenged the search as a violation of the Fourth Amendment, CBS News reports.

While Fourth Amendment protections don't generally apply to border searches, the issue in this case is whether that is still the rule when those searches take days to complete.

Customs and Border Protection agents still insist that they have a right to screen all materials coming into the United States. But that doesn't necessarily include the need to continue that screening off-site without a search warrant.

These kinds of searches only affect a small minority of travelers currently, according to the Times. But the legal issue has serious consequences for technology and the law.

More people than ever use their phones and laptops to store lots of information, including highly personal and sensitive data like past communications and financial information. Allowing routine laptop and device searches as part of a border security stop seems to go beyond the traditional scope of a border search, critics argue.

No matter the ruling, this issue is probably far from a conclusive final decision. But the expected opinion from Judge Edward R. Korman of the Federal District Court for the Eastern District of New York will likely shape the debate going forward.

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