“Border agents have been given unchecked authority to search through travelers’ emails, text messages, and personal photographs, and these complaints show the unsettling result,” said Carrie DeCell, a staff attorney at the Knight Institute. “These searches raise serious concerns under the First and Fourth Amendments, and government agents shouldn’t be conducting them without probable cause.”

In response to the Knight Institute’s Freedom of Information Act lawsuit, the government released a 92-page spreadsheet containing over 400 traveler complaints submitted between Oct. 1, 2011 and April 4, 2017, roughly 240 of which involve searches of electronic devices. These complaints paint a troubling picture of the humiliating process that often awaits U.S. citizens, visa holders, and other travelers when they arrive at ports of entry to the United States.

“My family and I feel belittled, ashamed, humiliated and disgraced,” said one U.S. citizen traveler about a search at San Francisco Airport, in a complaint dated June 11, 2015.

In their often anguished complaints, travelers describe border agents making copies of, and even reading aloud from, the private contents of their phones, laptops, and diaries, and prying into sensitive information including a journalist’s interview notes and confidential attorney-client information. According to the complaints, border agents interrogated and harassed travelers about their sexual orientation, romantic relationships, gender identity, and political and religious beliefs. Several travelers, including U.S. citizens, report having been handcuffed, detained for hours, separated from their families, and in some cases denied entry without being provided adequate or any reason.

The First and Fourth Amendments normally bar the government from conducting intrusive searches without judicial oversight and probable cause, or at least individualized suspicion. However, news reports as well as government documents make clear that border agents conduct suspicionless searches thousands of times a year.

The Knight Institute’s FOIA lawsuit also sought records of agency action taken in response to traveler complaints. Homeland Security has sent boilerplate responses to many travelers, but thus far the agency has disclosed no evidence that agents who abused their authority were sanctioned for their conduct or that the alleged abuses were even investigated.

Read excerpts from complaints and the full complaints and responses.

Lawyers on the case include DeCell, Alex Abdo, Jameel Jaffer, and Katie Fallow from the Knight Institute, and Scott B. Wilkens and Michael Stewart from the law firm of Jenner & Block.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

According to federal guidelines, the U.S. government can search a traveler’s electronic devices at the border even when there is no reason to suspect the person has done anything wrong. Customs and Border Protection and Immigration and Customs Enforcement officials have increasingly used this authority to subject U.S. citizens — including journalists, lawyers, and human rights advocates — to searches and seizures of their cellphones and other devices. Reports suggest that Muslims have been targeted disproportionately.

“These searches are extremely intrusive, and government agents shouldn’t be conducting them without cause,” said Jameel Jaffer, the Knight Institute’s executive director. “Putting this kind of unfettered power in the hands of border agents invites abuse and discrimination and will inevitably have a chilling effect on the freedoms of speech and association.”

Over the past few years, searches of electronic devices by U.S. border officers have increased dramatically, rising from about 5,000 in 2015 to about 25,000 in 2016, according to recent press reports. In February 2017 alone, border officials searched 5,000 devices.

"It’s difficult to see how a policy that gives the government unregulated access to jourKatie Fallow  

Of particular concern are the department’s policies for searching the cellphones and laptops of journalists, lawyers, and human rights advocates, said Katie Fallow, senior attorney at the Institute. “Allowing border agents to conduct fishing expeditions in journalists’ phones will make it more difficult for them to do the work we need them to do,” said Fallow. “It’s difficult to see how a policy that gives the government unregulated access to journalists’ correspondence and address books can be consistent with the First Amendment.”

The Knight Institute filed FOIA requests on March 15 with several components of DHS, seeking more detailed information on the number of travelers whose devices have been searched, the policies related to searching journalists, and internal audits of such practices by government civil rights agencies. The Institute is also seeking information from a database maintained by DHS that tracks every search of a device at the border, including the reason for the search. DHS created the database in response to concerns voiced by its own civil rights office about the possibility that the policies might be applied in a discriminatory or unlawful manner.

A criminal case concerning the constitutionality of electronic searches at the border is currently before the U.S. Court of Appeals for the Fourth Circuit. Among the advocacy groups that have filed amicus briefs are the ACLU and Electronic Frontier Foundation.

In addition to Jaffer, Fallow, and Alex Abdo of the Knight Institute, lawyers Scott B. Wilkens, Susan J. Kohlmann, Caroline M. DeCell, Michael E. Stewart, and Joshua H. Rubin of the firm Jenner & Block LLP are filing the suit.

The PDF of the complaint is here. To read the initial FOIA request, see here.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

For more information, contact the Knight Institute at (212) 854-9600 or Jennifer Valentino-DeVries, interim communications director, at jennifer.valentino@knightcolumbia.org.

Last Friday, U.S. Customs and Border Protection (CBP) released a revised directive governing searches of travelers’ electronic devices at U.S. borders, along with an updated privacy impact assessment of those searches.

The new directive improves on the old one in some respects, but it fails to resolve the constitutional concerns that many have raised. The new directive also raises some new concerns.

The bottom line is that CBP still claims sweeping authority to search information stored on a traveler’s cell phone, laptop, or other electronic device.  

1. Travelers’ obligation to unlock their devices: The most concerning change in the new directive is a passage stating that travelers are “obligated” to turn over their devices in a manner that allows inspection, that CBP may request passcodes to travelers’ devices, and that CBP may detain devices it cannot access. In other words, CBP now claims the authority to ask travelers for their passcodes and seize the devices of those who refuse. CBP’s prior policy did not impose the same obligation on travelers, although many reported that in practice CBP threatened to detain their devices if they refused to unlock them.
    
2. New standard for “advanced” searches: CBP’s directive now distinguishes between “basic” and “advanced” searches. The directive defines “advanced” searches as those involving the use of external equipment to review, copy, or analyze the contents of electronic devices. These may include, for example, searches that involve the use of another computer to quickly download and cross-reference a person’s contacts list against a government list of suspects, to scan a device for illicit content (e.g., child pornography), or to recover recently deleted content. The directive defines “basic” searches as anything else—including any manual review of a device by a CBP officer. While CBP officers may continue to conduct basic searches without any suspicion that a device contains evidence of a crime, the new directive requires that they articulate “reasonable suspicion” or a “national security concern” and obtain supervisory approval before conducting advanced searches. The new directive thus gestures towards the standard imposed by the Ninth Circuit Court of Appeals in its 2013 decision in United States v. Cotterman. Noting that advanced (what it called “forensic”) searches could expose reams of personal content, the court in that case held that the government may not conduct such searches without a showing of reasonable suspicion. But Cotterman was decided before U.S. v. Riley, in which the Supreme Court required police to obtain a warrant based on probable cause before conducting a search of a cell phone seized in connection with an arrest. There is a real question whether Cotterman remains good law. Moreover, the new directive does not actually implement the Cotterman standard, even as to advanced searches, because it allows CBP officers to conduct searches even without reasonable suspicion if they have a “national security concern,” a nebulous phrase the directive does not seek to limit. And, again, the directive does not impose any suspicion standard on basic searches.  Like the old directive, it permits CBP officers to scroll through a traveler’s cell phone, reading personal emails or texts and perusing personal photos and contact lists, on the basis of no suspicion whatsoever.
    
3. Prohibition on searches of remotely stored information: The new directive prohibits CBP officers from intentionally searching information not stored locally on travelers’ devices—i.e., information stored in the “cloud.” To implement this prohibition, the directive requires CBP officers to ask travelers to disable their device’s network connectivity, or to disable it themselves, before searching the device. This requirement appears to formalize a position the CBP Acting Commissioner took in response to inquiries from Senator Ron Wyden last June.
    
4. New procedures for handling legally privileged information: The directive sets forth more detailed procedures for the handling of information travelers claim is legally privileged. CBP officers must ask travelers to identify any privileged information. Then, working with CBP legal counsel, officers must attempt to segregate that information and handle it “appropriately.” The directive calls for the establishment of a “Filter Team” or other means of segregating legally privileged information from the information under search. There are no new procedures for handling sensitive information carried by journalists, though, except as otherwise provided in “any applicable federal law and CBP policy.”
    

The bottom line is that CBP still claims sweeping authority to search information stored on a traveler’s cell phone, laptop, or other electronic device. The directive offers little comfort to travelers who have complained of distressingly invasive searches of their private conversations, personal photos, and digitally recorded thoughts. While the requirement of reasonable suspicion for some “advanced” searches and the prohibition on searching remotely stored information are steps in the right direction, they fall far short of adequately protecting  travelers’ rights at the border.

Those directives (here and here) authorize U.S. Customs and Border Patrol (CBP) and Immigrations and Customs Enforcement (ICE) officers to search and detain travelers’ electronic devices without suspicion that the individual’s devices contain evidence of any wrongdoing.  In other words, border officers may compel travelers to hand over their digital lifelines for any reason whatsoever or for no reason at all.

Those devices may also store privileged or confidential information that their owners are duty-bound to protect, such as the identities of journalists’ confidential sources.  

On Wednesday, the ACLU and Electronic Freedom Foundation (EFF) filed an important new lawsuit challenging the constitutionality of those searches under the First and Fourth Amendment. The lawsuit details the harrowing searches of eleven plaintiffs — including a limousine driver, nursing student, NASA engineer, artist, filmmaker, professor and former Air Force captain, and two journalists — conducted at U.S. international airports and the U.S.-Canadian border. As the plaintiffs’ stories reflect, phones and laptops often store people’s most intimate information, capturing their thoughts, explorations, activities, and communities. Those devices may also store privileged or confidential information that their owners are duty-bound to protect, such as the identities of journalists’ confidential sources. Thus, government searches of electronic devices not only intrude upon personal privacy, but may also infringe freedoms of expression, association, and the press. 

The Supreme Court recognized as much in Riley v. California, where it explained that a cell phone search can reveal “the sum of an individual’s private life.”  The Court therefore held that such searches fall outside the “search incident to arrest” exception to the Fourth Amendment’s warrant requirement, which allows officers to search a person under arrest and the area within her immediate control to prevent harm to officers and destruction of evidence. Nevertheless, some lower courts have invoked another Fourth Amendment exception — the “border search” exception — to uphold warrantless searches of travelers’ electronic devices. That exception rests on the conclusion that government interests in security and law enforcement outweigh individual privacy interests at the border, so searches conducted at the border are generally “reasonable” under the Fourth Amendment. Yet because searches of cell phones and laptops raise more significant privacy concerns than searches of a traveler’s luggage regardless of whether they occur near the border, and given Riley, there is a strong argument that the searches are unconstitutional absent a showing of probable cause.

Beyond the constitutional questions that the new lawsuit poses, it also underscores the need for further disclosures about the government’s policies regarding electronic device searches at U.S. borders and the way those policies are implemented. Last March, the Knight Institute filed a FOIA lawsuit to obtain records related to the development and internal assessment of the border search policies, as well as reports of each instance in which CBP or ICE searched, detained, retained, or shared an electronic device or the information accessible on it.  To date, we have received only a fraction of the records we requested, including only handful of heavily redacted search reports, such as this one:

We are in ongoing negotiations with the government over the processing of other records, and we anticipate litigation over the legitimacy of some redactions.  We expect that these records will illuminate the First and Fourth Amendment questions presented in the new lawsuit filed by the ACLU and EFF.  Given the broad discretion the policies seem to afford border officers in conducting electronic device searches, the records may also raise additional questions regarding discriminatory treatment of travelers on the basis of their religion, ethnicity, or even First Amendment–protected activity such as reporting or advocacy.  Ultimately, we seek to ensure that members of the public have the information necessary to evaluate current policy and practice against their own expectations of privacy, free expression and association, and fair treatment.