As Device Searches at Border Grow, Courts Must Step in to Safeguard Constitutional Protections

Written by Greg Nojeim, Mana Azarmi

On February 2, CDT filed an amicus brief in Alasaad v. Nielsen arguing that warrantless, suspicionless border searches of electronic devices such as laptops and cell phones violate the First and Fourth Amendments to the Constitution. United States Customs and Border Protection (CBP) has justified these searches by pointing to dated case law that, for example, allowed the government to search a traveler’s gas tank without reasonable suspicion. The government relies on these cases to support the argument that the border search exception to the Fourth Amendment’s warrant requirement should extend to searches of digital devices. The ACLU and EFF brought the case in federal court in Massachusetts on behalf of 11 plaintiffs whose digital devices had been searched at the border.

Our brief highlights the dramatic difference between searches of digital devices and physical items like luggage. Digital—we argue—is different. Digital devices carry a quantity and quality of data never before conceived of, and capacity to carry data seems ever-growing due to innovation and the way digital devices access and store information from “the cloud.” Data on these devices can paint an intimate portrait of a traveler’s life, and as such, we believe border searches of these devices must require individualized suspicion.

Finally, we argue that CBP’s recently revised directive governing searches of electronic devices fails to cure the constitutional infirmities of border searches of digital devices. This January 4, 2018 directive distinguishes between “basic” searches of a device and “advanced” searches, which involve connecting external equipment to a device to review, copy, or analyze the contents. The directive marks a step forward because it requires “reasonable suspicion” for “advanced” searches, searches that under the 2009 policy required no suspicion, but still leaves significant loopholes like a major exemption for searches conducted pursuant to national security. The “basic” searches can continue to be conducted without any suspicion. In addition, the Immigration and Customs Enforcement agency has left in place its 2009 policy, which permits suspicionless border searches whether “basic” or “advanced.”

CDT was joined on this brief by three other civil society organizations, the Brennan Center for Justice, the R Street Institute, and TechFreedom.

The need to address these border searches is pressing because digital content is becoming far more prevalent. As we note in our brief, by 2020 approximately 80 percent of international travelers will carry a smartphone. These devices are a treasure trove of data and unsurprisingly, CBP’s searches of electronic devices at the border have shot up 60 percent since fiscal year 2016. We should expect that number to grow absent a court-imposed or Congressional restriction.

Legislation to address this issue is pending in Congress. In 2017, Senators Ron Wyden (D-OR), Rand Paul (R-KY), Edward Markey (D-MA), and Jeff Merkley (D-OR) introduced the Protecting Data at the Border Act, which among other provisions would require law enforcement to get a warrant based on probable cause before searching the device of a U.S. person (this includes green card holders). This bill, and its companion in the House introduced by Reps. Jared Polis (D-CO), Blake Farenthold (R-TX), and Adam Smith (D-WA), has not moved. Other constitutional challenges to suspicionless border searches are pending in the 4th, 5th and 11th Circuit Courts of Appeal. This means that we can expect the courts to play the lead role in tackling this issue.

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