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.


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  • icon
    Ninja (profile), 18 Sep 2017 @ 8:55am

    ACLU and EFF. This is gonna be a fight worth watching. And financing via donations.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 18 Sep 2017 @ 9:35am

    National Security

    Not everything done under the rubric of national security is about national security. The thing is, the government appears to think that this catch-all phrase will cover whatever shenanigans they are actually up to. Whether is about creating an absolutist, totalitarian environment or just supporting the Military/Industrial/Espionage Complex (which is about the same thing) they diminish the term 'national security' in the eyes of the populace.

    At some point, the populace will call those 'crying wolf' out and it will not be pretty for anyone. If they actually used investigative techniques from the last century more, and provided some probably cause for such searches, they would be much more believable.

    reply to this | link to this | view in chronology ]

    • icon
      radix (profile), 18 Sep 2017 @ 10:40am

      Re: National Security

      When they say "National Security," they're really saying "Government Security." Easily confused, but there's an important difference.

      Take the Snowden releases for example: Good for the security of the freedoms and ideals of the nation, but bad for the jobs and opacity of the bureaucrats in the government.

      When CBP searches the computers (which can also make phone calls, in this case) of journalists, especially, they're out to protect the government, not the Constitution that government claims to protect.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2017 @ 9:40am

    MyNameHere ranting and raving in three, two, one...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2017 @ 10:45am

      Re:

      Nah, you won't see him comment here. He'll just show up in other articles to complain about how none of us care about freedom as evidenced by how we are always pushing for more government regulation--conveniently omitting all the articles like these.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Sep 2017 @ 6:16pm

        Re: Re:

        You're mixing up MyNameHere with the "Oh I'm so intelligent all of you are regulation lovers" guy.

        The latter always posts under the default "Anonymous Coward" moniker like the rest of us.

        Conversely, MyNameHere (claims to) post exclusively when signed in, and when it comes to this topic, his shtick is to bitch about how hard it is for authorities to get warrants, and we should all be thankful to have our privacy invaded without warning or warrant to prop up the TSA security theater. He's a sucker for authoritarianism.

        reply to this | link to this | view in chronology ]

  • identicon
    David, 18 Sep 2017 @ 9:42am

    Did I miss the memo?

    If all goes well, we might have the US border join the rest of the United States in recognizing citizens' Fourth Amendment rights.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2017 @ 10:09am

      Re: Did I miss the memo?

      Yep. For the last few years, our government has been systematically violating the rights of everyone in and around the border(including airports and other locations deemed to not need the protection) by pretending that the constitution does not exist within 100 miles of the border. Since our president and many other people in this country take an oath that they will uphold the constitution, they are clearly in violation of that promise. Based on these violations, the government is no longer upholding its side of the deal and therefor needs to be replaced by one that will.

      reply to this | link to this | view in chronology ]

      • identicon
        Dano, 18 Sep 2017 @ 10:35am

        Re: Re: Did I miss the memo?

        ...and borders are not just the north and south. All of the east and west coasts are borders 12 miles off shore. LA, NY etc etc are within the magic 100 mile trap.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2017 @ 1:48pm

          Re: Re: Re: Did I miss the memo?

          I read somewhere that international airports were to be considered as a "border". So, all major metropolitan areas are also constitution free zones?

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Sep 2017 @ 10:51am

        Re: Re: Did I miss the memo?

        I don't know about you, but I read that as being incredulous about the "the rest of the United States [recognizes] citizens' Fourth Amendment rights" part, not the "US border [doesn't]" part.

        reply to this | link to this | view in chronology ]

        • identicon
          David, 18 Sep 2017 @ 11:01am

          Re: Re: Re: Did I miss the memo?

          Yup. Wanted to be more explicit, but pressing RET sent off the posting for some reason rather than ending the paragraph. And then I thought, well, actually this should be enough for getting the meaning across.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2017 @ 9:42am

    STILL GETTING IT FUCKING WRONG!

    "First, these confiscations are not justified at their inception when they are affected absent probable cause."

    The stupid... it still burns.

    Probable cause is NOT justification for seizure, only for a warrant. With Warrant in hand, THEN you can seize away!

    reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 18 Sep 2017 @ 10:17am

      Re: STILL GETTING IT FUCKING WRONG!

      ...Probable cause is what is needed in lieu of a warrant. That probable cause is supposed to be a reasonable belief that the searched items are contraband or part of criminal activities, and in plain view. Warrant-less searches are well and long established as legal, when performed in conjunction with an arrest. The problem is that if there is no arrest, what crime are the searches associated with?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2017 @ 11:08am

    Even flash drives not safe

    First sniffer dogs trained to help find paedophiles, terrorists and fraudsters

    Steven Morris Friday 15 September 2017 11.09 EDT



    Meet the latest weapon against child porn: sniffer dogs

    By Ben Guarino June 22, 2016

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2017 @ 2:39pm

      Re: Even flash drives not safe

      Well, the sniffing isn't really necessary, all they have to do to accomplish their job is alert on command.

      reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 18 Sep 2017 @ 11:27am

    Not blaming the victim

    It's wise to have a burner phone while crossing the border with all data you need stored on the cloud. At the very least it will expedite any searches.

    The 4th amendment is considered an inalienable right which means it applies to both citizens and non-citizens on US soil.

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2017 @ 2:47pm

      Re: Not blaming the victim

      Until they argue having a burner phone means you have something to hide and arrest you for obstructing justice.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2017 @ 11:37am

    Sounds familiar

    Why isn't this already covered by 140-year-old precedent, once they verify there's nothing physically suspicious about the devices?: No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.

    reply to this | link to this | view in chronology ]

  • identicon
    OzSwede, 18 Sep 2017 @ 6:42pm

    Bill of Rights

    "If all goes well, we might have the US border join the rest of the United States in recognizing citizens' Fourth Amendment rights."

    Citizens? Haven't there been enough court verdicts to show that everyone in the U.S. (even illegals) are covered by the bill of rights.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 18 Sep 2017 @ 11:38pm

    The CBP and ICE are already violating DoJ policy

    We've already seen Customs and Border Protection and Immigration and Customs Enforcement both act against orders as set by judges. They're under orders from the president to be ruthless in throwing out Latins, and that's what they're doing.

    They're not prioritizing felons in their arrest and detention of undocumented immigrants, despite policy and promises to do so.

    They're confiscating from some victims everything they own of value, as per civil forfeiture.

    They're arresting Americans and locking them up without access to council or resources by which to prove their citizenship before deporting them as if they were undocumented. They're doing the same to documented visitors, first confiscating their passports.

    They're deporting people to wherever they feel, often to nations other than country-of-origin. In many cases deported victims are delivered right into the hands of human traffickers.

    And no-one is stopping them, even when they gun people down in their tracks.

    So even if the ACLU and EFF are able to secure a ruling in their favor, I do not believe it's going to change the policies of law enforcement at the border, at least when it comes to non-whites. Not until officers start losing jobs or getting imprisoned, themselves.

    reply to this | link to this | view in chronology ]

    • identicon
      JEDIDIAH, 19 Sep 2017 @ 9:52am

      Re: The CBP and ICE are already violating DoJ policy

      > They're not prioritizing felons in their arrest and detention of undocumented immigrants, despite policy and promises to do so.

      Sure. You know this because CNN told it to you. These are the same people that will gloss over any details that don't support the narrative.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 19 Sep 2017 @ 1:19pm

        Did you just use the "CNN is fake news" argument?

        Actually I don't watch CNN.

        No, I got that bit from here on Techdirt who got it from the CATO Institute.

        Feel free to cite sources of your own about (say) how ICE and CBP really are playing by the rules to be super-fair to those brown-skinned people they're detaining. I'm sure official statements from the departments will have statements to that effect.

        reply to this | link to this | view in chronology ]

  • identicon
    Curious George, 19 Sep 2017 @ 1:44pm

    Can they open mail?

    I wonder if you were to carry a sealed postal letter through the border. Seems that would setup a fight between two federal agencies. Maybe the best way around this is to seal your electronic documents in a postbox, get it postmarked and don't open it until you reach your destination.

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 20 Sep 2017 @ 6:39am

    Information Censorship Enforcement

    Maybe this case will get us some clarification on what ICE and CBP are supposed to be looking for in their searches: items or information. I don't think either of these agencies is charged with restricting the flow of information over our borders. The arrangement of bits on a device should be of no interest to them, only the physical devices themselves.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2017 @ 10:42am

    Legal Implications of Action

    This invasion of technology may also have legal implications which the legal community is not prepared for. http://ncjolt.org/client-confidentiality-threatened-border/

    reply to this | link to this | view in chronology ]


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