Although it’s illegal for a police officer to search your electronic devices without a warrant — even after you’re arrested — the Department of Homeland Security says warrantless searches of digital content are allowed at any U.S. border. Privacy advocates and civil rights organizations are now suing the agency, claiming that border protection officers should also have a warrant before they’re allowed to search through residents’ laptops and phones.
On Wednesday, the Electronic Frontier Foundation and the American Civil Liberties filed a lawsuit [PDF] in federal court in Massachusetts against the DHS, claiming that warrantless searches of digital violate the First and Fourth amendments.
The suit was filed on behalf of 11 Americans — 10 U.S. citizens and one lawful permanent resident — who were reentering the country from business or personal travel when border officers searched their devices.
In Aug. 2009, the Department of Homeland Security clarified to [PDF] its Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE) agencies the government’s official position that warrantless searches of digital content were allowed at the border.
“In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law,” reads the DHS directive.
Five years later, the U.S. Supreme Court unanimously held in Riley v. California that police must have a warrant to search someone’s phone, even after that person has been arrested. This decision was an acknowledgement of the phone’s changing, now vital, role in daily life.
“Today’s electronic devices contain troves of data and personal information that can be used to assemble detailed, comprehensive pictures of their owners’ lives,” the lawsuit notes, calling government scrutiny of electronic devices “an unprecedented invasion of personal privacy and a threat to freedom of speech and association.”
It’s not like luggage
The lawsuit notes that unlike other belongings travelers have with them, their electronic devices contain a whole lot of personal information including messages to loved ones, private photographs, and sensitive medical, legal, and financial information.
“The volume and detail of personal data contained on these devices provides a comprehensive picture of travelers’ private lives, making mobile electronic devices unlike luggage or other items that travelers bring across the border,” the complaint says.
Not only is it a privacy issue, note advocates, but warrantless searches could have a chilling effect on free speech: If your phone or laptop could be searched at any time — revealing who you’re talking to or what you’ve said on social media, you might be less likely to express yourself freely.
“One of the concerns here is that when you have a regime of warrantless searches, people will think twice about who they can communicate with if they know the government can look at their phones,” ACLU attorney Esha Bhandari explained on a conference call with media.
She notes that some of the plaintiffs are journalists and artists, who are concerned about the impact of such searches when they may have source information and sensitive work products on their devices.
Requiring border offers to get a warrant will protect privacy and reduce the chilling of first amendment rights, the advocates say.
More searches every year
According to the lawsuit, the number of electronic device searches at the border have been steadily increasing over the last few years: Customs and Border Protection officers conducted 8,503 electronic device searches in fiscal year 2015; in 2016 that number grew to 19,033; and in the first half of fiscal year 2017, they conducted almost 15,000 searches of this kind. That puts the CBP on track to conduct more than three times the number of searches it did just two years ago.
Thus far, the government hasn’t provided any information on how many of those searches were performed on citizens or lawful permanent residents.
To that end, in March, a free speech group called Knight First Amendment Institute filed a lawsuit seeking to compel the DHS to make relevant records about electronic device searches at the border available to the public.
The 11 plaintiffs in this case — none of whom were subsequently accused of any wrongdoing — detailed their experiences with CBP officers in today’s lawsuit, claiming that often their devices were held for hours or even months with no explanation.
Plaintiff Diane Maye, an assistant professor of homeland security at Embry-Riddle Aeronautical University and a former Air Force captain who spent a decade working for the defense industry — including an 18-month stint in Iraq — says her phone was searched by CBP officers after she flew into Miami on her way home from Norway last year.
Exhausted after 24 hours of continuous travel, she says she needed to communicate with her husband, who was waiting for her.
She said she was confined in a small room and told to unlock her phone and laptop computer, and that she watched while they searched her devices. They then took her phone for two hours, she claims.
“As I sat in the interrogation room, I felt violated,” she told reporters today, saying she imagined officers going through her photos, banking information, social media, and other information. “This was my life, and a border agent held it in the palm of his hand.”
Akram Shibly, an independent filmmaker who lives in upstate New York, said he was crossing the U.S. border from Canada when he was detained for two hours after CBP demanded he unlock his phone.
“I feared that refusing their demands would result in them holding me at the border indefinitely,” he said today. After two hours, he says he was eventually allowed to leave.
But a few days later, he was once again detained and told to surrender his phone.
“When I refused, three agents used force against me,” he claims: One started to choke him, he alleges, while another restrained his arms and legs, and a third took his phone out of his pocket.
The device was later returned to him “without any explanation,” he says.
“I joined this lawsuit so other people don’t have to have to go through what happened to me,” Shibly said. “Border agents should not be able to coerce people into providing access to their phones, physically or otherwise.”
According to the lawsuit another plaintiff, Suhaib Allababidi, said his locked phone — which he declined to unlock — was confiscated by CBP officers in January after he flew in from Dubai. While the government returned another, unlocked phone he had with him two months after the incident, his locked phone has still not been returned to him.
The lawsuit seeks to establish that the government must have a warrant based on probable cause to suspect a violation of immigration or customs laws before conducting such searches.
Facing the future
The issue of warrantless searches will no doubt heat up as technology continues to advance.
For example — what will happen if a police officer or CBP agent can simply wave your iPhone X in front of your face, enabling its facial recognition technology to unlock your phone?
“There is some question whether or not they could get you to scan your face or your fingerprint,” Susan Hennessey, a fellow at the Brookings Institution and a managing editor of Lawfare, a leading national security blog, told The Washington Post. “Ultimately, this is the next development in the already existing, open legal question.”