Nowadays, most travelers to, or within, the U.S. are used to invasive airport security, which may range from being swabbed for explosives to full-body x-ray scans or the contents of our luggage being opened for inspection. Facial recognition technology is being rolled out for use in airports, and even heartbeat identification has been suggested as a possible security measure. But what is the limit when it comes to border security? A lawsuit has been filed against the federal government, claiming that warrantless searches of travelers’ electronic devices are in violation of the Constitution.
According to the filing, searches of travelers’ phones and laptops have quadrupled since 2015, rising to 33,295 in one year. It also claims that the scope of searches has extended beyond mere border security to intelligence gathering and general law enforcement, bypassing the need to obtain a warrant or have probable cause to suspect a crime.
As most Americans walk around these days with a mini computer in their handbag or back pocket, they carry with them a huge amount of information about their lives, choices, and contacts. This makes digital privacy in law enforcement not just an issue for American travelers, but for people across the nation.
Government Overstep at the Border?
The lawsuit was filed by the ACLU and the Electronic Frontier Foundation (EFF), an organization that promotes digital privacy. These organizations claim the Department of Homeland security has violated the Fourth Amendment by failing to require border officers to obtain warrants for device searches, as well as the First Amendment, on the basis that travelers may choose to self-censor their electronic activity due to worries that the government may be able to view the content and records stored on their devices at will.
While many would consider border security a high priority area of law enforcement, documents and testimony obtained from Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), reveal that these agencies have authorized border officials to inspect electronic devices for reasons irrelevant to their own purview. This includes the ability to conduct searches for “general law enforcement purposes, and consider requests from other government agencies when deciding whether to conduct such warrantless searches.”
According to the documents, CBP and ICE are collecting information not just in the name of border security, but in assisting law enforcement in fields including tax, bankruptcy, criminal, consumer protection and environmental crime, without the requirement of a warrant or any suspicion of wrongdoing. The information gathered can be kept indefinitely and shared with local, state, federal, or foreign law enforcement entities. They are also able to search the devices of people who not suspected of a crime, but who are associated with a person of interest.
EFF Senior Staff Attorney Adam Schwartz said:
“The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad … ICE and CBP policies and practices allow unfettered, warrantless searches of travelers’ digital devices, and empower officers to dodge the Fourth Amendment when rifling through highly personal information contained on laptops and phones.”
The information was unearthed as part of an ongoing legal case, Alasaad v. McAleenan, in which the EFF and ACLU are representing eleven plaintiffs in suing Acting Secretary of the Department of Homeland Security Kevin McAleenan, as well as CBP and ICE leaders. The plaintiffs claim they were subject to warrantless searches of their electronic devices without reasonable suspicion. Ten of the plaintiffs are U.S. citizens, plus one lawful permanent resident.
When the lawsuit Alasaad v. Nielsen was originally brought in 2017, the federal government immediately sought to have the case dismissed, but the motion was denied by a judge in the Massachusetts District Court and the legal proceedings are ongoing.
Policing in the Digital Age
This is not the only case that has brought up the developing questions over law enforcement, digital technology, and the right to privacy. In many instances, law enforcement has pounced on new technologies – a notable example is facial recognition – before anybody had a chance to question how it may affect peoples’ rights.
After two men were charged and convicted based on data found on their personal phones during unrelated arrests, the Supreme Court ruled that police officers may not examine the contents of a phone without a warrant, though they may inspect the physical body of the device. In the 2014 case Riley v. California, the court’s opinion was that, based on the quantity and scope of personal information collected on smart phones, it was not reasonable to expect that officers could access it without a warrant – particularly since the actual content of a device cannot be used to as a weapon or to cause physical harm. “[A] cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form— unless the phone is,” the court stated.
Riley v. California concerned internal law enforcement, but the EFF and ACLU argue that the same rules should apply at airports and ports of entry. More to the point, policing agencies should not be able to use border forces as a backdoor to Americans’ data. Several federal courts have allowed the use of digital data obtained at the border to be used in criminal prosecutions – although judges have called into question the usefulness of such inspections to prevent contraband entering the country.
“Before cell phones, border searches were limited by ‘physical realities’ that ensured any search would impose a relatively narrow intrusion on privacy … When it comes to cell phone searches, though, these ‘physical realities’ no longer exist,” commented Judge Pryor of the Eleventh Circuit. With so many now choosing to store their entire biographies on a single, hand held device, life has never been more convenient – for you, or the data-hungry government.
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