Borders and Laptops

There are several interesting issues at play in this week’s Fourth Amendment readings. The first issue I want to address is the idea that the border deserves a different set of rules from the interior of the country. Justice Brennan’s dissent makes a really interesting point that needs to be expanded upon. There is little legal question that the border should have different rules for the purposes of “immigration and custom control,” but for the purposes of a criminal investigation, “far different considerations apply.” These different considerations mean that people’s individual liberties are more protected when the investigation is of a criminal sort than of an immigration/customs type. Initially, I agreed with this line of reasoning, as Brennan goes on to lament the idea that warrants are necessary for many seemingly innocuous searches, but not to detain someone for 27 hours at the border, as happened with Montoya de Hernandez. A flaw in Brennan’s argument though, is this concession that customs control should allow different, less stringent rules for meriting a search or seizure. Customs is defined as an agency that controls the flow of goods including animals, personal effects, and hazardous items, in and out of the country. Montoya de Hernandez’ case was absolutely a customs case as she was smuggling illegal goods into the country.

Certainly, the officers did not deal with the Montoya de Hernandez case in a humane way, as there is no explanation for why it took such an excruciatingly long period of time for a warrant to be obtained and the command to excrete is inhumane and very worrisome. Nevertheless, if drug smugglers are going to go to such great lengths to break the law and bring illegal goods into our country, we must allow the people whose job it is to protect our borders to carry out their job—the initial seizure of de Hernandez because of a “reasonable suspicion” (her entire backstory) was valid, but the methods they used: demanding a pregnancy test and keeping her in a room without a bed for twenty-seven hours were not. The reasonable suspicion standard at the border seems fair and necessary for public safety, but the duration of seizure and intrusiveness of some searches must be more concretely defined.

In the Arnold case, Arnold makes an argument that searching computers, due to their ability to hold such a vast amount of information, should be treated like searches of “homes,” or even more interestingly, like the “human mind.” I don’t know how far I would take the comparison, but I have to agree that a laptop is fundamentally very different from other containers. This seems like a vast overreach of the government to be able to make such an intrusive look into personal material without even the medium standard of “reasonable suspicion” being necessary. The lack of physical danger associated with material that might be found on a computer makes these searches even more problematic in my mind.