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Warrantless border searches of electronics may be illegal, court rules

Warrantless border searches of electronics may be illegal, court rules
[Photo: Claire Anderson/Unsplash]

A Massachusetts federal court declined Thursday to throw out a suit  challenging the U.S. government’s practice of conducting warrantless digital device searches at borders and airports.

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The Trump administration had tried to have the lawsuit dismissed, but Judge Denise Casper determined that the suit had “plausibly alleged” that such searches violated constitutional protections against unreasonable searches and seizures. The suit was brought by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the ACLU’s Massachusetts affiliate on behalf of 11 plaintiffs: 10 U.S. citizens and one permanent resident whose devices had been searched when they returned to the U.S. from abroad.

Customs and Border Protection conducted more than 30,000 device searches last year, a 50% increase, according to the agency, which noted that only about 0.007% of incoming international travelers had their technology examined. Immigration and Customs Enforcement also has policies letting it conduct forced warrantless searches at the border. The heads of both agencies are defendants in the lawsuit.

Officials have said there’s a long-established right to inspect people’s personal belongings at the border in order to keep out contraband, including illegal digital files like child pornography. But the ACLU and EFF argue that laptops and phones are not like suitcases, and that such searches of electronic devices are unconstitutional privacy violations, given the amount of personal data that people store in them.

“As we’ve long argued, the border is not a Constitution-free zone,” EFF staff attorney Sophia Cope said in a statement hailing the ruling.

In Thursday’s ruling, Judge Casper described the law as unclear, but denied a government motion to dismiss the lawsuit, in part citing previous rulings on the heightened privacy concerns around digital data.

“Although Defendants may be correct that the border is different,” she wrote, “. . . the Supreme Court and First Circuit have acknowledged that digital searches are different too since they ‘implicate privacy concerns far beyond those implicated’ in a typical container search.”

Casper pointed to a major privacy rights case the U.S. Supreme Court decided in 2014 in which it determined police must obtain a warrant to search an arrested suspect’s cell phone. She also rejected the government’s arguments that the plaintiffs lacked standing to pursue the case.

Separately, on Wednesday, a federal appeals court in Virginia ruled that border agents can’t use digital forensics tools to search travelers’ devices without “individualized suspicion” that they’ve committed a crime. The Fourth Circuit court declined to rule on whether the same standard should apply to manual searches.

Last month, the Electronic Privacy Information Center separately sued ICE seeking the release of information about its use of those forensic tools to pull encrypted data from smartphones.


Related: What You Can Do To Keep Your Data Private When Crossing The Border

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