A federal court declared that suspicionless border search policies employed by Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) violate the Fourth Amendment right to privacy.
The United States District Court in Massachusetts also ruled that seizures of electronic devices, without “reasonable suspicion,” violate the Fourth Amendment.
“This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year,” declared Esha Bhandari, a staff attorney for the ACLU’s Speech, Privacy, and Technology Project. “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.”
Electronic Frontier Foundation senior staff attorney Sophia Cope added, “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.”
On September 13, 2017, the ACLU and EFF sued the federal government on behalf of 11 travelers who were subjected to suspicionless and warrantless searches and seizures of their electronic devices at the U.S. border.
Attorneys for ACLU and EFF argued a U.S. Supreme Court decision, Riley v. California, which was issued in 2014, should apply to border searches. In that case, the Supreme Court determined police were not allowed to conduct warrantless searches of arrestees’ cell phones.
The federal court in Massachusetts agreed [PDF] that the Supreme Court ruling outlined concerns that were relevant to the “unfettered access to thousands of pictures, location data, and browsing history,” which the CBP and ICE are able to grant themselves under their policies for “basic searches.”
As the court noted, “Riley further rejected the notion that searches of electronic devices are comparable to searches of physical items or persons, noting that such a comparison ‘is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.’”
The court additionally found no meaningful difference between what CBP and ICE call “basic” and “advanced” searches.
“Agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the ‘basic’ searches and “advanced” searches as now defined by the CBP and ICE policies,” the court declared. “This requirement reflects both the important privacy interests involved in searching electronic devices and the defendant’s governmental interests at the border.”
Several of the plaintiffs who sued are journalists. Zainab Merchant was questioned on March 17, 2017, about a post on her blog that described a prior border-crossing experience.
CBP agents coerced Merchant, who was in tears, into unlocking her phone and providing her password. They asked her about the purpose of her trip, as well as her religious affiliation.
Merchant wears a headscarf and was concerned the CBP would violate her privacy by downloading photographs of her without her headscarf.
The court noted, “Her laptop and phone were taken out of her sight for one and a half hours, and when returned, her phone was open to the Facebook friends page, which it had not been when she gave officers her phone.”
Journalist Jérémie Dupin, as the court acknowledged, was asked by agents about “his phone’s contents including photos, emails, and contacts.”
According to the complaint [PDF] filed in September 2017, “CBP officers twice searched the contents of Mr. Dupin’s phone, which contained his confidential journalistic work product, including reporting notes and images, source contact and identifying information, and communications with editors.”
Journalist Isma’il Kushkush, had “his phone taken by agents at the border and searched for an hour, and then was questioned about his work as a journalist. His phone contained journalistic work product, work-related photos, and personal contacts,” the court further acknowledged.
Agents searched the cell phone of Sidd Bikkannavar, who is an employee of NASA’s Jet Propulsion Laboratory. They apparently used “algorithms” to search his phone. Ghassan Alasaad, who is a limousine driver, had her phone and her husband’s phone seized. The phones were not returned until 15 days later.
“Upon return, media files in one application, including videos of her daughter’s graduation, indicated that they no longer existed on the phone and were not accessible.”
Plaintiffs requested an injunction to prevent CBP and ICE agents from searching their electronic devices without a warrant and an injunction to prevent agents from confiscating their electronic devices, “with the intent to search the devices” without a warrant after they left the border.
The court denied this request, as a well as a request for expungement of any data from their devices that the government may have obtained and retained in any databases or computer systems.
Nonetheless, as ACLU and EFF described in their press release, the court put an end to CBP and ICE’s “asserted authority to search and seize travelers’ devices for purposes far afield from the enforcement of immigration and customs laws.”
The court recognized there should be constraints to the government’s claimed “border search exception” to the Fourth Amendment. In particular, agents should demonstrate there is an individualized suspicion that a person has illegal contraband before searching or seizing a traveler’s electronic device.