Relying on directives from the George W. Bush administration, U.S. border patrol and immigration officers have been subjecting travelers crossing U.S. borders to intrusive searches of their cell phones, laptops, and other electronic devices at significantly increased rates over the past year.
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.
Carrie DeCell is a staff attorney at the Knight First Amendment Institute.