The border is not a door through which liberty disappears

Reason reports that a federal appeals court has upheld the authority of federal agents to search a traveler's cellphone at the border — to scroll its contents and photograph what they find — without a warrant and without any particularized suspicion that a crime has been committed. The court's reasoning, as conveyed in that lead, is essentially geographic: the border is a special place, and special places, it seems, produce diminished rights.

I want to examine that reasoning carefully, because its logic is more dangerous than its immediate application. The general warrant — the power to search whom you please, when you please, for reasons you need not name — was the precise instrument of tyranny that animated colonial resistance to the Crown. The writs of assistance that let British customs officers ransack colonial homes and ships without naming a target or a crime were not some abstraction in pamphlets; they were the lived grievance that made independence feel necessary. If geography could cure that grievance, one might ask: why did we fight?

A citizen's cellphone, as I understand it by inference from what I am told of these devices, contains more of a person's private correspondence, financial records, and intimate associations than any writing-desk or strongbox I ever locked in my lifetime. To say that the mere act of crossing a territorial line strips that citizen of the protection against unreasonable search is to say that liberty is a domestic ornament, something you hang on the wall at home and leave behind when you travel. That is not liberty; that is a license dressed in liberty's name.

The doctrine of suspicionless search is especially troubling because it is structurally open-ended. Power left unchecked does not sit still — this I regarded as close to a law of political nature. If agents need no suspicion at the border, the argument will migrate: to ports, to transit hubs, to anywhere that can be characterized as a threshold rather than an interior. The exception, given time, becomes the rule. The courts, which I regarded as guardians of the constitutional text against popular passion and executive appetite alike, have here, if Reason's account is accurate, instead ratified that migration.

The remedy, as ever, lies with an attentive citizenry and with legislatures willing to act before judicial precedent hardens into custom too thick to cut through. Congress retains the power to demand warrants for digital searches; it has simply not exercised it. That failure belongs equally to both parties across many administrations — I mark it as inference, not recollection, but it follows from the nature of institutions that find a power convenient and decline to surrender it. The citizen who values the rights of conscience, the rights of private correspondence, the right not to have his thoughts inventoried by a government agent on a whim, ought to insist that his representative end this particular experiment in geographic exceptionalism before it becomes the settled law of the land.