American Civil Liberties Union challenges warrantless border searches of electronic devices

By agency reporter
January 28, 2018

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) have urged a federal judge to reject the Department of Homeland Security (DHS)  attempt to dismiss an important lawsuit challenging its policy of searching and confiscating, without suspicion or warrant, travellers’ electronic devices at US borders.

EFF and ACLU are representing 11 travellers — 10 US citizens and one lawful permanent resident — whose smartphones and laptops were searched without warrants at the US border in a lawsuit filed in September 2017. The case, Alasaad v. Neilsen, asks the court to rule that the government must have a warrant based on probable cause before conducting searches of electronic devices, which contain highly detailed personal information about people’s lives. The case also argues that the government must have probable cause to confiscate a traveller’s device.

“Searches of electronic devices at the border are increasing rapidly, causing greater numbers of people to have their constitutional rights violated,” said ACLU attorney Esha Bhandari. “Device searches can give border officers unfettered access to vast amounts of private information about our lives, and they are unconstitutional absent a warrant.”

The plaintiffs in the case include a military veteran, journalists, students, an artist, a NASA engineer, and a business owner. The government seeks dismissal, saying the plaintiffs do not have the right to bring the lawsuit and the Fourth Amendment does not apply to border searches. Both claims are wrong, the EFF and ACLU explain in a brief filed on 26 January 2018 in federal court in Boston.

First, the plaintiffs have 'standing' to seek a court order to end unconstitutional border device searches because they face a substantial risk of having their devices searched again. This means they are the right parties to bring this case and should be able to proceed to the merits. Four plaintiffs have already had their devices searched multiple times.

Immigration and Customs Enforcement (ICE) policy allows border agents to search and confiscate anyone’s smartphone for any reason or for no reason at all. Customs and Border Protection (CBP) policy allows border device searches without a warrant or probable cause, and usually without even reasonable suspicion. Last year, CBP conducted more than 30,000 border device searches, more than triple the number just two years earlier.

“Our clients are travellers from all walks of life. The government policies that invaded their privacy in the past are enforced every day at airports and border crossings around the country,” said EFF Staff Attorney Sophia Cope.

“Because the plaintiffs face being searched in the future, they have the right to proceed with this case. They deserve a ruling about whether the government must stop treating the border as a place where the US Constitution doesn’t apply”, said Cope.

Second, the plaintiffs argue that the Fourth Amendment requires border officers to get a warrant before searching a traveller’s electronic device. This follows from the Supreme Court’s 2014 decision in Riley v. California requiring that police officers get a warrant before searching an arrestee’s cell phone. The court explained that cell phones contain the “privacies of life”— a uniquely large and varied amount of highly sensitive information, including emails, photos, and medical records. This is equally true for international travellers, the vast majority of whom are not suspected of any crime. Warrantless border device searches also violate the First Amendment, because they chill freedom of speech and association by allowing the government to view people’s contacts, communications, and reading material.

*Read the brief in Alasaad v. Neilsen here

* American Civil Liberties Union https://www.aclu.org/

* Electronic Frontier Foundation https://www.eff.org/

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