While border agencies Customs and Border Protection and Immigration and Customs Enforcement often say they need to inspect people’s electronics at the border to stop human smuggling, smuggling of child pornography, and terrorism, the American Civil Liberties Union and Electronic Frontier Foundation say the agencies are authorized to search for a far wider range of types of evidence.
That includes searching for data indicating people are breaking tax laws, hiding assets during bankruptcy, violating consumer and environmental protection law, or laundering money, the groups said in a Tuesday court filing. The groups also say, citing deposition testimony by an ICE official, that the agency claims the authority to search people’s devices for information about other people, including sources of journalists and scholars as well as people’s business partners, relatives, and other associates.
“This new evidence reveals that government agencies are using the pretext of the border to make an end run around the First and Fourth Amendments,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, in a statement. “The border is not a lawless place, ICE and CBP are not exempt from the Constitution, and the information on our electronic devices is not devoid of Fourth Amendment protections. We’re asking the court to stop these unlawful searches and require the government to get a warrant.”
The groups, who are representing 11 people whose phones and laptops were searched at the border, are asking a Massachusetts federal judge to rule that the agencies’ warrantless search policies are unconstitutional. Judge Denise Casper previously ruled against a request by the Trump administration to throw out the suit, saying plaintiffs “plausibly alleged” the searches were illegal.
“The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad,” EFF senior staff attorney Adam Schwartz said in a statement. “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 agencies have long argued they have special privileges at the border to search travelers and keep out contraband like child pornography, but civil liberties groups have said device searches are more intrusive than traditional suitcase inspections given the amount of private data people carry in their electronics.
Laptop and smartphone searches by CBP at the border have surged in recent years, rising from 5,085 in 2012 to 33,295 in 2018.