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“My Phone Was My Life”—Challenging Warrantless Border Searches of Devices

by Dale Chappell

The American Civil Liberties Union (“ACLU”) and Electronic Frontier Foundation (“EFF”) filed a federal lawsuit against the Department of Homeland Security (“DHS”), Customs and Border Protection, and Immigration and Customs Enforcement in the United States District Court for the District of Massachusetts on September 13, 2017. The suit claims that unwarranted and unsuspicious searches of electronic devices, such as smart phones, at U.S. borders are a “major threat to privacy and civil liberties,” according to the ACLU.

From 2015 to 2016, there was nearly a 125 percent increase in device searches at U.S. borders, according to data cited by the ACLU and EFF. The lawsuit takes aim at a 2009 DHS directive titled “Border Searches of Electronic Devices,” which authorizes border agents to conduct “warrantless and suspicionless searches and confiscations of mobile electronic devices.” The lawsuit contends: “Because government scrutiny of electronic devices is an unprecedented invasion of personal privacy and a threat to freedom of speech and association, searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional.”

“The government cannot use the border as a dragnet to search through our private data,” said Esha Bhandari, an ACLU attorney. “Our electronic devices contain massive amounts of information that can paint a detailed picture of our personal lives,” she said. Sensitive content, such as medical information or privileged attorney-client communications, may be on many travelers’ phones, the ACLU pointed out. “Our phones have become blueprints for our entire lives.”

Travelers have no meaningful way to resist or contest the searches, according to the ACLU. “One agent grabbed me by the throat and began to choke me,” said Akram Shibly, a New York State resident, describing how agents forcibly took his phone out of his pocket at the Canadian border when he refused to turn over his phone. Under the 2009 policy, agents can view the contents of a person’s smartphone, download that content, or confiscate the phone for a “forensic” analysis at another location. The phone may be returned weeks or months later—or not at all.

“People store their whole lives” on their phones, EFF staff attorney Sophia Cope said in a statement about the lawsuit. Diane Maye, a professor of homeland security and global conflict studies, said she “felt humiliated and violated” when she was detained for two hours at Miami International Airport while agents searched her phone upon her return from a vacation in Europe. “This was my life, and a border officer held it in the palm of his hand,” she said. Maye explained that she joined the lawsuit “because I strongly believe the government shouldn’t have unfettered power to invade your privacy.”

“It’s clear that members of Muslim, Arab, Middle Eastern, and South Asian communities have been disproportionately targeted,” the ACLU said. “Requiring a warrant for device searches would help prevent racial and religious profiling” by the government.

Although the Fourth Amendment protects us against unreasonable searches and seizure, courts have consistently ruled that customs agents have greater latitude in conducting warrantless searches than police do once inside the country. The rationale for this grant of authority is that the government has an interest in enforcing immigration laws and stopping contraband from entering. But the broad authority to conduct warrantless searches at the border has traditionally focused on travelers’ luggage, not smartphones and other types of electronic devices. 

The ACLU notes, “We do not forfeit our constitutional rights when we return to the United States from abroad.” In recognizing that smartphones are not like suitcases for Fourth Amendment purposes, the U.S. Supreme Court held in 2014 that police need a warrant to search the smartphones of people under arrest. The Court observed that such devices contain “the privacies of life.” The ACLU and EFF are asking the U.S. District Court to impose that same requirement at the borders. 

Relief sought in the lawsuit includes an injunction against further confiscation and searches of devices, a declaration that the plaintiffs’ constitutional rights were violated, and an order to expunge all information gathered from the illegal searches. 

Sources: www.aclu.org, www.eff.org, www.nytimes.com  

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