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Two civil rights groups sued the U.S. Department of Homeland Security over the warrantless border searches of travelers’ electronic devices, calling such inspections unconstitutional and an invasion of privacy.

The lawsuit was filed on September 13 in a Boston federal court by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EEF), a San Francisco-based nonprofit organization that advocates for digital rights. They are representing 11 people whose laptops and smartphones were searched by U.S. Customs and Border Protection (CBP) agents at airports as they arrived in the United States from business or personal travel.

Ten of the plaintiffs named in the complaint are U.S. citizens while one is a permanent resident. The group comprises students, journalists, a business owner, NASA engineer, artist and a U.S. military veteran. ACLU released their names and their experiences to the media.

At the heart of the lawsuit is the argument that conducting such searches without a warrant is a violation of First and Fourth Amendment rights as digital devices contain vast amounts of personal information, including emails, text messages, photos, contacts, medical records and financial data. Opponents of warrantless searches at U.S. airports say the laws that authorize the inspection of luggage without a judge’s approval do not apply to digital devices.

The ACLU and EEF have called for tougher legal standards for border searches of smartphones, tablets and laptops, as well as a set timetable for returning devices to their owners. The civil rights groups argued that there must be probable cause before a traveler’s electronic device is confiscated. Additionally, searches and seizures should be provided full Fourth Amendment protections by requiring federal agents to obtain a search warrant from a judge prior to conducting inspections.

“The Supreme Court has upheld routine border searches as a well-established exception to the warrant requirement,” attorney Edward Griffin of Adelphi Law in Baltimore, Maryland, told Bigger Law Firm. “They don’t require probable cause or even reasonable suspicion . . . If a border search goes beyond ‘routine,’ then it would have to be justified, but only by reasonable suspicion. The reasonable suspicion standard is a pretty low hurdle. As our society, notions of privacy and use of technology changes, our laws can be slow to keep up with them.”

Department of Homeland Security spokesman David Lapan declined to discuss the lawsuit. However, he maintained that the digital device “searches are lawful” and that everyone entering the country is subject to them.

The nature of searches conducted by federal agents at U.S. airports and other border areas has been under intense debate due to the modern-day ubiquity of smartphones, laptops and other electronic devices routinely carried across borders. They raise key issues concerning the balance between privacy and the necessity of enforcing immigration laws.

“The kind of information that is now stored on these digital devices amounts to rummaging through someone’s private dresser,” Washington, D.C. immigration attorney Natalia Segermeister of Price Benowitz told Bigger Law Firm. “The advent of increased storage capacity and the ability to store large files in the cloud, accessible through small digital devices like cellphones, has meant that the scope of what customs agents consider permissible searches has widened beyond the narrow purpose of enforcing immigration and customs laws.”

The border searches of electronic devices began during the George W. Bush administration. While they became more common under the Obama administration, recent data indicates the inspections have sharply increased in the past year since President Donald Trump assumed office.

CBP agents carried out almost 15,000 searches between October 2016 and March 2017, compared with 8,383 in the same period a year before. The total number of searches for the current fiscal year is expected to reach around 30,000 — marking a threefold rise from 2015.

Despite the growing number of electronic device searches, federal officials say they are still rare and performed on fewer than one-hundredth of one percent of the millions of people entering the country each year. The government also maintains that such searches are a necessary part of its mission to protect Americans by enforcing customs and immigration laws.

John Wagner, the deputy executive assistant commissioner of the Office of Field Operations, defended the practice following the release of CBP statistics in April. He said digital device searches played a significant role in “national security investigations, arrests for child pornography and evidence of human trafficking.” He also claimed CBP agents were trained to be “judicious” in their searches of electronic devices and to safeguard the personal information on them.

The Fourth Amendment prohibits unreasonable searches without probable cause and requires federal authorities to procure warrants. However, courts have ruled that border officers are allowed to conduct warrantless searches of travelers at U.S. ports of entry to protect national security.

“If the true purpose of the exception to the Fourth Amendment protections against unreasonable searches and seizures at the border is to control who has permission to enter the United States and what items may be brought into the country, the search should be limited to the person and their possessions, not their digital footprint,” said Segermeister. She has represented several clients who experienced intimidation and offensive questioning from customs officers seeking to search their electronic devices. One Pakistani man’s cellphone was confiscated and not returned despite multiple requests. “The proper venue for a more invasive search is a criminal investigation, not a return flight from visiting grandma.”

There has been at least one case that recognized that electronic devices differ distinctly from luggage. In 2014, the Supreme Court made a landmark decision in Riley v. California. The court unanimously ruled that it was unconstitutional for law enforcement officers to search and seize the digital contents of a cellphone during an arrest. It was noted that cellphones store large quantities of personal information that offers intimate details of people’s private lives. The decision was cited in the current lawsuit over the search of electronic devices at U.S. borders.

Some of the travelers in the ACLU and EEF lawsuit said they were intimidated by border officers, who seized their devices and kept them for weeks, or even several months. In one case, CBP agents asked plaintiff Akram Shibly, a U.S. citizen and an award-winning filmmaker, to submit his cellphone for inspection. When he refused, they allegedly physically restrained him and seized the device by force.

“Continuing to permit the search of private information stored on digital devices and the confiscation of electronics by customs officers is a slippery slope towards eroding the protections individuals have under the Constitution,” said Segermeister.

About Author

Dipal Parmar is a staff contributor to Bigger Law Firm Magazine and legal content developer for mid-sized to large law firms.

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