Ride the Lightning

ACLU and EFF File Suit Saying Compulsory Border Searches of Laptops and Phones are Unlawful

September 20, 2017

As The New York Times reported last week, eleven people whose phones and laptops were searched at United States airports and at the nation's northern border are suing the Department of Homeland Security. The lawsuit, filed last Wednesday by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), claims the plaintiffs' First and Fourth Amendment rights were violated when United States agents searched, and in some cases confiscated, their devices without a warrant. The government has said those searches happen to fewer than one-hundredth of one percent of international travelers, and that they are authorized by the same laws that allow border agents to look through suitcases without a judge's approval.

Privacy advocates do not agree. They say that those laws, drafted with luggage in mind, should not apply to digital devices that hold a large amount of personal data related to their owners and others they have contacted.

The searches, which began under the George W. Bush administration and became more common during the Obama administration, have sharply increased in the past year. According to the most recent data available, there were nearly 15,000 searches from October 2016 to March 2017, compared with 8,383 in the same period a year before.

In March, Joseph B. Maher, the acting general counsel for the Department of Homeland Security, defended the practice. "These electronic media searches have produced information used to combat terrorism, violations of export controls, and convictions for child pornography, intellectual property rights violations and visa fraud," he wrote. "This authority is critical to our mission, and Customs exercises it judiciously."

While police officers on the street cannot compel you to hand over your phone without probable cause, border agents can search and confiscate digital devices just as they can search your suitcase. Courts have long held that customs officials have an interest in enforcing immigration laws and keeping contraband out of the country.

At least one major judicial case has acknowledged that cellphones are not the same as suitcases. In a 2014 Supreme Court decision that made it harder for police to search cellphones without a warrant, Chief Justice John G. Roberts Jr. wrote that the devices contained "the privacies of life."

The policies that direct border agents are written to allow the digital searches "with or without individualized suspicion." But it's not clear what, exactly, border agents are searching through when they seize devices. That is especially true when the searches are not done in the presence of the device owners.

In June, Kevin McAleenan, the acting commissioner for Customs and Border Protection, wrote in a letter to lawmakers that agents are not permitted to look at data stored solely in the "cloud." According to the letter, agents would be limited to data stored directly on the device, including photos, text messages, call histories and contacts.

Esha Bhandari, an ACLU staff attorney, said in an interview that it was unclear whether agents would be permitted to search cloud-based apps on the phone, which would include social media accounts and email. "We don't think it changes anything with respect to the constitutional claims at issue here, which is that the government needs to get a warrant before it searches devices," said Ms. Bhandari.

The Knight First Amendment Institute at Columbia University filed Freedom of Information Act requests in March to learn how the government was using its authority, but said that so far it has received only heavily redacted reports. Jameel Jaffer, the institute's executive director, said that the searches could have a chilling effect on journalists, lawyers and doctors, who often travel with their devices and have a professional obligation to shield the identities of their sources, clients and patients and their information.

"It's hard to see how the kind of unfettered authority that border agents have been invested with can be reconciled with the limits the constitution places on government power," Mr. Jaffer said.

Of the 11 people who filed the lawsuit, 10 are American citizens and one is a permanent resident. They include journalists, students, a NASA engineer and an artist.

While the government cannot compel travelers to unlock their phones, several of the plaintiffs said they were intimidated into doing so. Four of them said their devices were confiscated; one of them, Suhaib Allababidi, a business owner from Texas, said the government kept an unlocked phone of his for two months, and hadn't returned a locked phone after more than seven months.

I am glad the ACLU and EFF are bringing this issue to the courts – for too long, these fundamental constitutional issues have not been directly addressed.

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