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Declared Unconstitutional: Warrantless Searches of Devices at US Borders

November 19, 2019

Naked Security posted on November 14 about a new decision from a federal court in Boston ruling suspicion-free warrantless searches of devices at US borders unconstitutional.

Rights groups are hailing the Boston ruling as a major win. Sophia Cope, a senior staff attorney with the Electronic Frontier Foundation (EFF), said, "This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices."

The case is Alasaad v. McAleenan which was filed against the Department of Homeland Security (DHS) in 2017 by the American Civil Liberties Union (ACLU) and the EFF on behalf of 11 travelers: 10 legal residents of the US and one lawful permanent resident, all of whom were forced into warrantless searches of their mobile phones and laptops at the border.

One is natural-born US citizen Sidd Bikkannavar. He's a NASA engineer who was detained by US Customs and Border Protection (CBP) in 2017 and pressured to hand over his NASA-issued phone (which might well have contained sensitive information) and the PIN to get into it.

Esha Bhandari, staff attorney with the ACLU's Speech, Privacy, and Technology Project, said that the ruling is a significant boost for Fourth Amendment protections, which prohibit unreasonable searches and seizures, and will protect the millions of international travelers who enter the US every year.

By putting an end to the government's ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don't lose our privacy rights when we travel.

Prior to the ruling, the ACLU and the EFF filed evidence in court showing policies and practices of Immigration and Customs Enforcement (ICE) and CBP that authorized officers to conduct warrantless, suspicion-free device searches for purposes that had nothing to do with immigration or customs laws, including enforcing bankruptcy, environmental, and consumer protection laws, and for intelligence gathering or to advance pre-existing investigations.

The documents showed that border agents were also allowed to consider requests from other government agencies to search devices, the EFF said.

Agents were empowered to search electronic devices even when the actual target wasn't the traveler standing in front of them – such as when the traveler is a journalist or scholar with foreign sources who are of interest to the US government, or when the traveler is the business partner of someone under investigation.

Both agencies have also allowed agents to retain the data they copy off devices and share it with other government entities, including state, local, and foreign law enforcement agencies. They have not been all that careful with the data, as we learned in December 2018, when the Office of Inspector General (OIG) filed a report with DHS about border agents copying travelers' data and leaving it kicking around on USB drives that they don't always erase and sometimes misplace.

So where are we now?

It's legal for border agents to look through the devices of travelers who get referred for a secondary inspection. During the primary inspection, travel documents and passports are reviewed. If a secondary inspection is needed, officers may search phones, thumb drives, computers and other electronic devices to determine whether they should let somebody into the country or to identify potential legal violations.

According to the ACLU, the Boston district court's order puts an end to the authority that CBP and ICE granted themselves to search and seize travelers' devices for purposes beyond enforcing immigration and customs laws. At this point, border officers are required to demonstrate "individualized suspicion of contraband" before they can search a traveler's device, the ACLU said.

Searching of electronic devices has gone crazy. In January 2018, CBP released numbers showing that agents had conducted 30,200 device searches in 2017. That number grew to more than 33,000 searches in 2018. Those numbers have skyrocketed from that of 2015, when there were only 4,764 device searches. Let's see if those numbers decline in response to the court's ruling.

HT to Dave Ries.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
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