EFF, ACLU Sue Government Over Warrantless Electronic Searches At The Border
from the still-in-US-territory,-but-none-of-your-rights-apply dept
If all goes well, we might have the US border join the rest of the United States in recognizing citizens’ Fourth Amendment rights. The Supreme Court’s Riley decision made it clear law enforcement needed to obtain warrants before searching people’s cellphones. Unfortunately, the so-called “border exception” — upheld by at least one court — says securing the border is more important than recognizing people’s rights.
The EFF and ACLU — along with the 10 US citizens and one permanent resident they’re representing — are suing DHS, CBP, and ICE for violating the Constitutional rights of the plaintiffs by warrantlessly searching their devices. Not only did the government search their devices, but in some cases, held onto the devices for weeks. One plaintiff’s phone is still in the hands of the CBP, having originally been taken from the plaintiff in January.
The filing [PDF] provides details of the plaintiffs’ interaction with government agents at US borders. All plaintiffs were taken to secondary screening where they were coerced into handing over their devices and, in some cases, passwords. This is all being done with zero articulable suspicion or probable cause. Agents imply devices will be returned sooner if those they’ve detained are compliant. But even complicity can result in citizens having to leave their devices in the hands of the government.
Even when travelers comply with officers’ demands to unlock their devices or provide their device passwords, officers sometimes confiscate the devices anyway. For example, even though Ms. Alasaad provided the password to her phone, and CBP officers had already searched Mr. Alasaad’s unlocked phone, officers still confiscated both of the couple’s phones. CBP kept both phones for approximately 15 days.
These lengthy device confiscations cause significant harm. Many travelers, including Plaintiffs, rely on their electronic devices for their work and livelihoods, as well as for communicating with family members. Losing access to electronic devices and the information they contain for extended periods of time can disrupt travelers’ personal and professional lives. Confiscation of electronic devices is especially harmful to those who need, but do not have or cannot afford, replacement devices, and those who need but did not back up stored data.
As a result, the plaintiffs have spent thousands of dollars replacing devices the government kept without offering a legitimate law enforcement/national security reason for doing so. As the lawsuit points out, this type of behavior is unconstitutional.
When CBP and ICE officers confiscate electronic devices pursuant to their policies and practices for the purpose of searching those devices’ content, such confiscations violate the Fourth Amendment in at least three distinct ways:
a. First, these confiscations are not justified at their inception when they are affected absent probable cause.
b. Second, these confiscations are excessive in scope, because officers confiscate not just the locked devices they are unable to search at the port of entry, but also the unlocked devices they are able to search and that they sometimes have already searched.
c. Third, these confiscations are excessive in duration where the duration of confiscation of locked devices is unreasonable in relation to the time actually needed to search the devices.
In addition to the Fourth Amendment violations, there are also concerns about the First. A few of those participating in this lawsuit are journalists. CBP officers not only searched their phones, but questioned them directly about sources and subjects.
Even the plaintiffs who aren’t journalists have valid First Amendment complaints. If the government’s going to demand access to writings, photos, videos, and other forms of expression stored on electronic devices, this limits future expressive acts. People whose devices have been seized and searched are less likely to give the government as much to dig through the second time around. This means less writing, fewer photos, and steering clear of any artistic creation the government might somehow misconstrue as threatening, criminal, or simply critical of rote government abuse.
As the plaintiffs point out, these searches aren’t Constitutional, but they are allowed by DHS and CBP policies — which state agents may search and seize phones without reasonable suspicion. To that end, the lawsuit asks the court to find the policies officially unconstitutional and ban the government from searching devices at the border without a warrant.
It’s a long shot, given the judicial branch’s general deference to all things national security-related. But it will be nice to see the government explain how the Supreme Court’s Riley decision somehow doesn’t apply to American citizens just because they’re entering or leaving the country.