US lawsuit challenges border searches of electronic devices as unconstitutional

By agency reporter
May 13, 2018

A federal judge has ruled that a lawsuit challenging the government’s growing practice of searching electronic devices at the border without a warrant can proceed, rejecting the government’s attempt to have the case dismissed.

The American Civil Liberties Union, the Electronic Frontier Foundation, and the ACLU of Massachusetts brought the case against the Department of Homeland Security last September on behalf of 11 travellers whose smartphones and laptops were searched without warrants at the US border. The plaintiffs are 10 US citizens and one lawful permanent resident who hail from seven states and come from a variety of backgrounds.

“This is a win for constitutional rights at the border,” said ACLU attorney Esha Bhandari, who argued the case last month. “The court has rightly recognised the severity of the privacy violations that travellers face when the government conducts suspicionless border searches of electronics. We look forward to arguing this case on the merits and showing that these searches are unconstitutional.”

The court found that the plaintiffs can sue for violations of their Fourth Amendment and First Amendment rights.

“This is a big win for the digital rights of all international travellers,” said EFF Staff Attorney Sophia Cope. “In rejecting the government’s motion to dismiss the case, the court rightly concluded that the plaintiffs sufficiently alleged that the government's device search policies unconstitutionally burden privacy and free speech rights. As we’ve long argued, the border is not a Constitution-free zone.” (http://www.ekklesia.co.uk/node/25100)

Quoting a landmark 2014 Supreme Court opinion on cellphone privacy, US District Court Judge Denise Casper wrote in her decision, “[E]lectronic device searches are, categorically, more intrusive than searches of one’s person or effects. The ability to review travellers’ cell phones allows officers to view ‘nearly every aspect of their lives – from the mundane to the intimate.’”

Immigration and Customs Enforcement policy allows border agents to search and confiscate anyone’s smartphone for any reason or for no reason at all. Customs and Border Protection 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.

Plaintiff Diane Maye, a college professor and retired US Air Force officer, was detained for two hours at Miami International Airport when coming home from a vacation in Europe in June.

Plaintiff Sidd Bikkannavar, an engineer for NASA’s Jet Propulsion Laboratory in California, was detained at the Houston airport on the way home from vacation in Chile. A CPB officer demanded that he reveal the password for his phone. The officer returned the phone a half-hour later, saying that it had been searched using “algorithms.”

Another plaintiff was subjected to violence. Akram Shibly, an independent filmmaker who lives in upstate New York, was crossing the US-Canada border after a social outing in the Toronto area in January when a CBP officer ordered him to hand over his phone. CBP had just searched his phone three days earlier when he was returning from a work trip in Toronto, so Shibly declined. Officers then physically restrained him, with one choking him and another holding his legs, and took his phone from his pocket. They kept the phone, which was already unlocked, for over an hour before giving it back.

*More about the plaintiffs and their individual stories here

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

[Ekk/4]

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