Two civil liberties groups contend that recent policy changes give U.S. agencies nearly unfettered ability to search travelers’ laptops and smartphones at border crossings.
The Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU’s Massachusetts branch have asked a court to strike down new electronic device search policies from U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. The groups want the court to rule the search policies violate the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures. The groups asked for the summary judgment during an April 30 hearing in U.S. District Court in Massachusetts.
The policies allow the agencies to search electronic devices without a court-ordered warrant and confiscate those devices, in many cases, for an indefinite time frame, according to court and agency documents.
“Our position is that the Fourth Amendment requires the government to get a warrant before searching someone’s phone, laptop, or other electronic device, even at the border,” said Adam Schwartz, a senior staff attorney at the EFF.
[Related: ACLU will sue to block Trump’s ‘illegal power grab’ on border security]
A spokeswoman for the Department of Homeland Security, the parent agency of both agencies in the suit, declined to comment, saying the agency doesn’t comment on pending court cases. Homeland Security has opposed the lawsuit and has asked for it to be dismissed.
Device searches are “essential” to enforcing U.S. law, Customs and Border Protection said in a January 2018 policy update. “They help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography,” the agency said. “They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark, and export control violations.”
Device searches help assess risks “that otherwise may be predicated on limited or no advance information about a given traveler or item,” the agency added.
The civil liberties groups have objections to the recent change in policy, which allows a basic search of a traveler’s electronic device without any suspicion of a crime. An advanced or forensic search allows Customs and Border Protection officers to connect external equipment to access the contents of a device, which under the new policy would still require the reasonable suspicion of a crime or a national security concern.
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The policy puts no limit on the amount of time the agency can keep and search the device. The policy also allows the agency to retain information from the device related to “immigration, customs and other enforcement matters,” even if there is no probable cause to suspect a crime.
Immigration and Customs Enforcement’s device search policy, amended in May 2018, is similar. That policy states device searches should “generally” be done within 30 days but can be lengthened upon the approval of a supervisor.
The civil liberties groups first filed a lawsuit challenging device searches in September 2017 on behalf of 11 travelers whose smartphones and laptops were allegedly searched without warrants at the border. The plaintiffs are 10 U.S. citizens and one lawful permanent resident.
One plaintiff is a college professor and retired U.S. Air Force officer who was detained for two hours at the Miami airport after returning from a European vacation. A second plaintiff is an engineer for NASA’s Jet Propulsion Laboratory in California who was detained at the Houston airport on the way home from vacation in Chile. A Customs and Border Protection officer allegedly demanded he turn over the password for his phone.
Schwartz expects the Department of Homeland Security to file a counter request for summary judgment, and the Massachusetts court is scheduled to hear arguments for summary judgment on July 18. If the court grants summary judgment for either side, there won’t be a trial, but there will likely be an appeal. The case could still end up in a trial if the court denies the motions for summary judgment.
