In September 2017, the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation sued the federal government for searching phones and laptops at airports or other U.S. ports of entry without a warrant or cause for suspicion.
To prepare for trial, the ACLU and EFF received documents and deposition testimonies from U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE).
As it turns out, CBP and ICE not only authorized border officials to search phones and laptops, but they could also “consider requests from other government agencies when deciding whether to conduct such warrantless searches.”
Now, the ACLU and EFF are asking a federal court to rule without trial that the Department of Homeland Security violates First and Fourth Amendment rights with its warrantless search processes.
Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology project, said:
“This new evidence reveals that government agencies are using the pretext of the border to make an end run around the First and Fourth Amendments. The border is not a lawless place, ICE and CBP are not exempt from the Constitution, and the information on our electronic devices is not devoid of Fourth Amendment protections. We’re asking the court to stop these unlawful searches and require the government to get a warrant.”
The Fourth Amendment protects you from unnecessary search and seizures. Most people are familiar with the First Amendment that grants freedom of speech, the press, and religion.
The First Amendment is relevant in this case for a few reasons. The ACLU and EFF originally filed on behalf of 11 travelers — ten U.S. citizens and one permanent resident. Of those people, two are journalists. One of the journalists — Isma’il Kushkush — worried that he was being targeted because of his reporting after repeated searches.
In addition, two of the women targeted — Zainab Merchant and Nadia Alasaad — both wear hijab. The ACLU reported that their smartphones contained photos of themselves without their scarves that they didn’t want border officers to see. However, “Officers searched the phones nonetheless.”
According to the ACLU, “the agencies assert the authority to search electronic devices when the subject of interest is someone other than the traveler — such as when the traveler is a journalist or scholar with foreign sources who are of interest to the U.S. government, or even when the traveler is the business partner of someone under investigation.”
Civil rights groups like the ACLU and other privacy advocates have battled DHS for some time. In particular, ICE is notorious for over-exercising its power. March reports revealed that ICE had access to a huge license plate database to track immigrants.
“ICE has long embraced technology to target immigrants,” the ACLU said in March. “Now it’s taking surveillance to an unprecedented level to target vulnerable communities — and sweeping up everyone else in the process.”
Our electronic devices contain a plethora of information — including where you’ve been, whom you’ve seen, and what you’ve talked about. This isn’t the information that the government is automatically entitled to. It’s important to pay attention to what happens at the border because it can impact people’s everyday lives.