Warrantless Border Searches: The Officer "Searched Through...Intimate Photos of My Wife"
Earlier this year, the U.S. government released statistics confirming that border agents are searching thousands of travelers’ laptops, cell phones, and other electronic devices each month. Now, as Charlie Savage and Ron Nixon report for the New York Times, the Knight First Amendment Institute at Columbia University has obtained a trove of traveler complaints that illuminates the experiences behind those statistics. These complaints reveal a range of discriminatory, demeaning, and gratuitously intrusive searches that travelers have endured at the border.
As I explained in a previous post, decade-old directives authorize U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) agents to search travelers’ electronic devices without any individualized suspicion, let alone any judicial oversight. This authority is extraordinary within the American constitutional landscape. Government officials generally cannot force individuals to disclose the books and articles they’ve read, conversations they’ve had, photos they’ve taken, songs they’ve heard, or organizations they’ve joined, without a very good reason. To justify such intrusions, the First Amendment typically requires officials to show that their demand is narrowly tailored to a compelling government interest; and the Fourth Amendment typically requires them to obtain a warrant, supported by probable cause to believe the individual has committed a crime. Yet border agents are forcing travelers to turn over a “digital record of nearly every aspect of their lives—from the mundane to the intimate”—often for no stated reason whatsoever.
Now we have the accounts of hundreds of travelers who were detained by border agents and whose electronic devices were searched or seized. Many travelers described border agents’ efforts to access, copy, and share travelers’ personal information, including personal correspondence, contacts, photographs, and diaries.
• A UK citizen and former Royal Marine Commando stopped at a Detroit airport reported that a border agent “searched through every email that I had sent and received” and “personal photos of me and my family, some of them were [intimate] photos with my wife. The officer in question was laughing and smirking the whole time while violating my rights.” [Complaint dated 01/15/16; see also complaint dated 09/25/16]
• A woman from Ireland noted that a border agent “found my personal diary and read extremely personal excerpts aloud detailing issues of mental health and self worth in a crowded area of customs with the pure intent of humiliating me.” [Complaint dated 08/09/15; see also complaint dated 10/13/11]
• A U.S. citizen complained that “my equipment such as my phones, ipad and laptop have been confiscated and kept for hours. Also on a recent trip I was asked to give my ipad, iphone and itunes password.” [Complaint dated 06/12/15; see also complaint dated 10/24/15]
• Two U.S. citizens and their family were stopped at the Houston airport when returning from a vacation to Guatemala. They reported: “We were separated and individually interrogated . . . including my teenage daughters. All our luggage was searched, all our papers were copied--including newspapers we had picked up in our travels. Our phones and electronic devices (ipad etc.) were taken, searched and all information was copied)--all this without any explanation or accusation. We were advised if we refused such search, that we would be indefinitely detained.” [Complaint dated 01/26/13]
• A visa holder searched at a Denver airport received confirmation that “EIGHT persons ha[d] been handling my personal laptop computer and external hard drive” and “that all my files were copied and to be reviewed. . . . At least they could let me know, what is happening with my files. And when those files will be deleted?” [Complaint dated 04/05/12; see also complaint dated 09/09/12]
I felt like he was judging me and that my being gay was wrong.
Some travelers described long detentions in connection with device searches, during which border agents confiscated their cell phones and prohibited them from contacting concerned friends and family members. Others reported that border agents seized their laptops and cell phones for more extensive searches, returning them several days, months, or over a year later, or damaging them and refusing to provide compensation.
• A woman held for an extension search and interrogation stated that even “after 10 hours of waiting and interrogation . . . I had not at this stage been offered to make a phone call to any family members or friends waiting for me. . . . I asked for food and was fed two packets of animal crackers as there were no vegetarian meals available.” [Complaint dated 08/09/15; see also complaint dated 09/09/12]
• A U.S. citizen complained about repeated searches, noting that “[l]ast time my electronic devices [were] confiscated for several days violating my civil rights as an American citizen. It took [me] back 29 years ago when I left Syria for such intimidation and overreaching by government agencies.” [Complaint dated 05/11/12]
• A U.S. citizen living in New York whose family was stopped when returning from Canada reported that, when border agents “returned our cellphones to us, we noticed my wife[’]s cellphone case was broken. When we told the officials it was broken, they said it was already broken which is a lie.” [Complaint dated 02/01/12; see also complaint dated 08/09/15]
It is not only the number and manner of the device searches that is troubling, but also the use of these searches as a pretext for intelligence fishing expeditions.
A U.S. citizen, a freelance journalist who writes for the New York Times and other publications, described demands by border agents at a New York airport for information about his or her reporting: “For three hours I was questioned, my notebooks and camera was taken (to make copies I assume) as was my laptop. I was asked about details of whom I met and interviewed, asked for contacts, telephone numbers, emails and I was physically searched. . . . I believe it interferes with my right to privacy and press freedom when traveling becomes a burden and security agents copy my notebooks, photographs, contacts and hard drive. . . . I would like this matter to be solved as soon as possible so I can continue my work as a journalist without being treated as a suspect.” [Complaint dated 10/18/16]
Other travelers reported interrogations about their political and religious beliefs and unapologetic dismissals of their religious sensitivities.
• A computer science PhD student stopped when returning from a conference in Toronto reported: “I felt my privacy has been violated as the officer without my permission took my cellphone started to check my information. When I told him that I have some photos that because of my religion, he is not supposed to see but just a woman can see, without asking a woman to do that, he just said ‘law is above religion.’” [Complaint dated 01/16/15]
• A traveler returning from the Hajj was stopped at a New York airport and asked “questions regarding my religious activity, civic engagement and political affiliation as well as charitable contributions [that] have nothing to do with my travel or the security of our country. Furthermore I had personal and sensitive documents like . . . people’s prayer requests (deeply personal) that were collected, read, copied, and returned to me at the end before I was released.” [Complaint dated 09/27/12; see also complaints dated 06/12/12, 10/18/16]
It took [me] back 29 years ago when I left Syria for such intimidation and overreaching by government agencies.
Beyond these intrusions into travelers’ most sensitive personal and professional data, the complaints document harassment of and discrimination against travelers as women, for being gay, or based on their religion or ethnicity.
• A woman denied entry into the United States wrote: “The officer found my contraceptive pills and condoms and claimed this was evidence that I was meeting a partner in the U.S., something I rebuffed. I believe this was unfairly targeted towards myself as a woman as I don[’]t believe a man would be questioned over the use of contraceptives.” [Complaint dated 08/09/15; see also complaint dated 07/05/16]
• A woman from Ghana was stopped at the Detroit airport and subjected to an extensive search of her electronic devices, including multiple messaging and social media accounts, and interrogation about her trip to the United States. She told the border agent that she intended to buy items for the baby and get some rest before returning to Ghana in advance of her due date, but the border agent denied her entry, allegedly without “any evidence or proof what so ever to determine that I was going to become a ward of the government. She only saw a vulnerable pregnant woman like me and decided to pick on me. That, I must say is against my human rights. . . . I believe I was unfairly detained and denied entry into the United States because I am pregnant.” [Complaint dated 10/24/15]
• A UK citizen stopped at the Houston airport reported that a border agent “asked me very private questions. He asked if I[’]m gay. He asked if I ever shared a housing with anyone who is gay. I[’]m gay but I felt like he was judging me and that my being gay was wrong. I told him I don[’]t discriminate against anyone. When he didn[’]t like my answers, he would send me to a cell room. I have never been inside a detention cell in my life and I was in panic attack.” [Complaint dated 09/17/13]
• A U.S. citizen who was detained for hours while agents searched his or her phones and computer wrote: “I am certain that I was treated unfairly and was discriminated as the officer . . . could not comprehend the fact that there are American Citizens who are born in the US and speak with an accent due to their heritage or where they grew up. I was treated not as a US citizen who was born, live and Work in the US, but rather an Arab who came from Jordan and should be bothered.” [Complaint dated 09/09/12; see also complaint dated 02/10/15]
• A U.S. citizen whose family was searched at a Chicago airport reported that border agents “took my sons college laptop and cell phones and they still have them. . . . Started asking if we pray and if we go to the mosque and how many times. And asked if I was a Muslim.” [Complaint dated 08/03/16]
Finally, many travelers articulated the sense of violation, humiliation, and general distress they and their family members experienced following such ordeals.
• A U.S. citizen who routinely endures questioning and electronic device searches upon returning to the United States from abroad stated: “I feel that 'Welcome Back Home' does not mean anything to me because my welcome party does not welcome with open arms, but with suspicion and paranoia.” [Complaint dated 06/12/15]
• A U.S. citizen and professor whose family’s electronic devices were searched at a San Francisco airport expressed: “My family and I feel belittled, ashamed, humiliated and disgraced when all of this happens.” [Complaint dated 06/11/15; see also complaint dated 01/30/13]
• A U.S. citizen whose family was detained and searched at the U.S.-Canada border lamented: “[M]y children grew up in America and love America but every time my kids and I get detained for no reason they start to question me and ask, Dad, why do we always get detained? They are starting to lose faith in the American system.” [Complaint dated 02/01/12]
These are just a few of the nearly 250 complaints involving electronic device searches that are included in the documents obtained by the Knight Institute. Together, they do what raw statistics about the frequency of electronic device searches at the border cannot do: convey the intrusiveness and abusiveness of many of these searches. They focus our attention on the experiences of individual travelers and on specific violations of individual rights, filling in an important gap in our understanding of the kind of authority border agents are wielding at international airports and land crossings into neighboring countries.
While the number of travelers selected for electronic device searches remains a small fraction of the travelers who pass through those borders, that number is increasing. And coupled with the random, arbitrary, or possibly discriminatory basis on which travelers are selected for searches, it threatens to chill the expressive and associative activity of anyone contemplating an international trip or communicating with a frequent traveler. Government agents should not be conducting these kinds of searches without judicial oversight and individualized suspicion.