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Wednesday, September 8, 2010

Border Security Invading Your Privacy

Observers of federal government policy can note an incongruity regarding what is allowed to cross our national borders.

Illegal aliens (a/k/a undocumented aliens) may cross, and if they're captured and found to lack an American criminal record, may have their deportation proceedings dismissed by the federal government on its own motion. (Some criticize this as de facto amnesty; draw your own conclusions, that is not the issue of this article.)

However, if you are an American citizen and leave the United States and wish to re-enter with an electronic device (like a laptop or smartphone), the border authorities claim the right to confiscate your device, make a copy of its contents (outside your presence), inspect those same contents and, for all intents and purposes, keep them. (The latter is not supposed to occur, but with neither an effective enforcement mechanism nor the willpower of the government to respect the Fourth Amendment, as a practical matter I would argue you lose all privacy rights as to the contents of those devices.)

This amounts to an unconstitutional infringement on Americans' right to travel abroad, as the de facto government right to inspect these devices poses a serious privacy invasion which can deter foreign travel through the imposition of a serious penalty(inconvenience at best, intrusion at worst) on travellers.
Moreover, any person who is a client of an attorney with attorney work product and/or confidential information on a device is at a major risk of having these confidences breached at border inspection.
The illegally-obtained information cannot be used in court -- although no client should feel comfortable risking having to argue that position in court -- but the real issue is losing access to sensitive and potentially embarrassing information. Of course, incriminating information can be trouble too, for its discovery can prompt further government efforts to discover "admissible" evidence. One can argue that such evidence is tainted or is the fruit of a poisonous tree, but the point here is that a risk of rights violations is present and cannot be negated.

Lawyers would do well to leave all such devices within the country so that private, confidential or proprietary information remains secure. This is a special inconvenience on lawyers, but the government's attitude towards many lawyers is to view their activities as often being one step above treason.

It is a shame that the government is not willing to expend an equivalent effort on securing the borders against illegal aliens or criminals, or terrorists.

Crime, Politics and Policy supports the efforts of the National Association of Criminal Defense Lawyers to oppose and challenge this practice. We emphasize that this issue is not a criminal rights isue, but a privacy issue that affects and threatens all Americans.

Eric Dixon is a New York corporate lawyer who writes on and researches various constitutional rights issues pertaining to civil liberties.   He is available for consultation or comment at 917-696-2442 and inquiries may be made through edixon@NYBusinessCounsel.com.

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