Privacy

Warrantless Border Searches Draw Call for Supreme Court Action

The feds say they can paw through your phone and laptop any time you enter or leave the country.

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Civil liberties groups are, once again, challenging the federal government's growing taste for searching travelers' electronic devices at the border without suspicion or warrants. Last week, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and the ACLU of Massachusetts asked the United States Supreme Court to intervene in an ongoing lawsuit and to apply Fourth Amendment protections to people at points of entry to the country, including airports.

"The lawsuit, Merchant v. Mayorkas, was filed in September 2017 on behalf of several travelers whose cell phones, laptops, and other electronic devices were searched without warrants at the U.S. border," notes the groups' joint press release. "In November 2019, a federal district court in Boston ruled that border agencies' policies on electronic device searches violate the Fourth Amendment, and required border officers to have reasonable suspicion of digital contraband before they can search a traveler's device. A three-judge panel at the First Circuit reversed this decision in February 2021."

It's important to get a determination one way or another about the application of constitutional protections for individual rights at the border because such searches have soared for years under administrations from both major political parties. 

"Border Protection says searches increased fivefold in the final fiscal year of the Obama presidency," the AP reported in 2017. Such searches almost quadrupled again, according to the ACLU, from 8,503 in 2015 to more than 30,000 in 2018. The government says those numbers further rose to 40,000 in 2019 (the pandemic travel slump slightly dampened search totals for 2020). If bipartisanship still exists in Washington, D.C., it truly comes together over agreement to violate individuals' liberty and privacy.

"Border officers claim the authority to search devices for a host of reasons, including enforcement of tax, financial, consumer protection, and environmental laws—all without suspicion of wrongdoing," EFF and the ACLU point out. "Border officers also search travelers' devices if they are interested in information about someone other than the traveler—like a business partner, family member, or a journalist's source."

In 2016, Department of Homeland Security agents at LAX insisted on searching cell phones belonging to Maria Abi-Habib, then a reporter covering the Middle East for the Wall Street Journal. Uncertain why she was targeted, but speculating it was because of her contacts in the volatile region, she thwarted them by involving her employer's considerable legal clout. 

In 2019, Rolling Stone's Seth Harp was less fortunate at the airport in Austin, Texas, upon his return from a trip to Mexico. Although he cooperated, he was detained for hours as federal agents pawed through photos taken in war zones and questioned him about his political views.

EFF and the ACLU represent 11 lower-profile plaintiffs who can't call on powerful newspaper attorneys or easily publicize their ordeals. The plaintiffs' hopes lie in the lawsuit and, hopefully, intervention by the Supreme Court. High court action is necessary because of federal appeals court decisions allowing warrantless and suspicionless searches of those crossing the border—in either direction.

"In general, border searches of electronic devices do not require a warrant or suspicion, but certain searches undertaken in the Ninth Circuit must meet a heightened standard," U.S. Customs and Border Protection advised in a 2018 Privacy Impact Assessment Update for CBP Border Searches of Electronic Devices. "Additionally, the authority to conduct border searches extends not only to persons and merchandise entering the United States, but applies equally to those departing the country."

While not to the same nearly limitless degree as at airports and border crossings, federal agents also enjoy wide search powers up to 100 miles from the border. Given population distribution in the country, that means that a majority of Americans enjoy fewer protections for their natural rights than the Fourth Amendment would seem to provide. Federal agents, unsurprisingly, are not eager to surrender their authority.

"We conclude that CBP's and ICE's current border search policies comply with the Fourth Amendment," argued the DHS in 2013. "We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits."

"Under a reasonable suspicion requirement officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search," DHS warned in its full Civil Rights/Civil Liberties Impact Assessment: Border Searches of Electronic Devices report the same year.

Some might argue that "hunch" and "intuition" are poor grounds for permitting government agents to paw through private property and personal data, but not the bureaucrats who enjoy doing just that. Fourth Amendment protections exist precisely to protect individual rights from intrusions based on such loose "spidey-sense" standards, which pretty much every cop on the planet would be happy to invoke given the opportunity. That's why we need the courts to intervene—or, maybe, a little attention from some of the remaining politicians who still care about civil liberties.

In 2019, Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.) introduced a bill to end warrantless and suspicionless searches of electronic devices at border crossings. Given the age in which we live and overwhelming bipartisan love for the surveillance state, the legislation went nowhere. The two lawmakers are still working together on efforts to curb end-runs around Fourth Amendment protections by government agencies, though they haven't revisited the issue of border searches. Given renewed attention to the issue, perhaps they'll revive the earlier bill.

Until lawmakers show renewed interest in privacy protections for travelers, keep an eye on the U.S. Supreme Court and its reaction to the petition from the EFF and the ACLU. And maybe keep your sensitive information in encrypted cloud storage or otherwise secure from easy access by snoopy border agents.

NEXT: The Myth of Antonio Salazar

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  1. Offtrack anecdote.
    I was pulled over by a Illinois State trooper last thursday at 9:00 pm for a nice conversation about the speed limit in Illinois on Interstate Highways. He requested Insurance information and the rental car agreement. Both of these were located on my phone. I handed my phone over as Illinois required. I verified that my address was correct for a neighboring state and he realized that I was close to my way home on a 450 mile drive. When I found the e-mail with the rental agreement, I gave him permission to open the PDF if he needed to see more information. He did not ask permission, but it all seemed reasonable with him doing so. I am not sure if my phone ever left my sight. After checking out all of my information he let me go with a nice warning about driving over the speed limit ( which I had admitted to) and I thanked him for the nice experience and wished him a safe evening.

    1. Prepare to be arrested for the child porn he downloaded onto your phone.

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    2. Sounds like some things are still worth printing on paper.

      Or carry a burner phone.

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    4. I don’t use any apps on my phone and don’t even know how to use a password on my phone. If they want to look at a bunch of boring shit, have at it.

  2. Wait until the Supreme Court hands down their Caniglia v. Strom decision and you find out the cops don’t need warrants for anything at all.

    1. “Community Caretaking! *busts down unlocked door* Do you need any *bang* *bang* *bang* assistance?!?”

      -Police in the very near future who will later talk someone’s ear off about how they are just misrepresented by the liberal media.

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    2. The Terry v Ohio descision already did away with a lot of the 4th while in public. Might as well add in your home.

    3. Yeah, if it’s the one I’m thinking of, that’s an absolutely horrible opinion by the First Circuit. Their version of Michigan v. Sitz: “Yes, this behavior by the State is a gross violation of the Fourth Amendment, but Drunk Driving!” Only here, it’s the East Coast and guns.

      My hope is that Scotus took the case in order to shove this idiotic end-around of the Fourth, right down the throats of the First Circuit with instructions to read their fucking Constitution this time. I’m an optimist, though.

      1. Child porn exceptions is how we got to where we are with the internet and 230. There will always be an exception…. And fuck the supreme court.
        Or like freedom of association… “but, racism”.

      2. Read the Constitution? Why do that when you can “reinterpret” it out of existence, just like QI.

  3. I’m glad I don’t live in China! Over there, the border agents can search your smart phone without a warrant!

    1. Prepare to be bored, Chicom Nazis!

  4. “Border officers also search travelers’ devices if they are interested in information about someone other than the traveler—like a business partner, family member, or a journalist’s source.”

    “Please disrobe so we can examine your tattoos for information about someone other than you. Of course, you are entitled to an agent of your gender for this service.”

    1. Imagine the uproar of a 220lb agent with a 5 o’clock shadow gets to strip search women because he identifies as a woman.

      1. There going to have to clarify that law something fierce.
        Do you need to present as a woman to identify as one? Do i have to shave or wear “women’s clothes” or make up to identify as a woman? What if I do, but dont identify as a woman?

        The judges, save Thomas, are complete morons.

  5. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”

    Um, a lotta guys also conclude that you conclude wrong.

  6. Always carry a burner phone at the border.

  7. Why is it that EVERY White country is FORCED to accept unlimited third-world immigration, assimilation, and why is it that ONLY White countries are FORCED to become multicultural? No one asks that of any non-White country. Multiculturalism is just a code word for White Genocide.

    1. Idiot.

    2. Yeah, dude we get it. No one is going for your racist bullshit.

    3. You do realize that white people evolved from black people?

    4. Look what the stupid dragged in.

    5. You dont even sound like an actual racist. Is this some copy pasta or something?

    6. What, exactly, is a White country?

    7. It’s the law! There is no reciprocation, except in Taiwan. Chicom sabateurs and spies abound here, especially in the KMT. They’ll be rounded up and interrogated/executed on the first day that the PRC decides to “reunify”. Good riddance to bad rubbish!

  8. Three questions:

    Should border security impose different requirements for citizens and visitors?

    Should normal internal rights apply to citizens at the border (but not necessarily to visitors)?

    How much of the degradation of citizen rights at US borders has been driven by the urge for political correctness, i.e. treating citizens like visitors out of “fairness”?

    1. I’d say: maybe, yes (mostly) and probably not too much.

      There is probably some justification for excluding certain dangerous contraband or infectious materials. That can probably be accomplished with ag and bomb sniffing dogs. Certainly no reason to pry into personal details or information.
      I don’t think there is really and PC fairness motivation about extra scrutiny for citizens. I think they do it because they can get away with it and law enforcement agencies like excuses to get in people’s business.

    2. Yes.
      Mostly.
      Should be none.

      re: “mostly” – You have the right to take your pets and plants pretty much anywhere within a country but that doesn’t overcome the need to quarantine for diseases or prohibit invasive species at the border.

    3. No (the Constitution limits govt controls over people – which includes travelers, immigrants, etc., not just citizens).
      No (see above).
      None. The govt suspects everyone regardless of citizenship.

      1. That’s a feature, not a bug. Or vice-versa, depending upon the particular ICE agent.

  9. Last week, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and the ACLU of Massachusetts asked the United States Supreme Court to intervene in an ongoing lawsuit and to apply Fourth Amendment protections to people at points of entry to the country, including airports.

    Oh I’m sure they’ll get right on that.

    “B-b-but… TeH TeRrIsTs AnD DrUg SmUgGlErZ! DERP!!!!!!”

  10. If you can afford to travel, you can afford a burner phone, and upload everything to the cloud so you can trash the phone before entering the USA. (formerly known as the land of the free)

    1. Don’t tell me what I can afford.

      1. They’re cheap. Less costly than routing internal USA communications through Switzerland or Australia so that PRISM can record them.

  11. “Border Protection says searches increased fivefold in the final fiscal year of the Obama presidency…”

    Just highlighting the obvious and also to stop the gaslighting before it starts from the left. Remember in the last months of Obama’s final term Samantha Bee mentioned that yeah he had deported more than any president before him, but waved it away as meaningless because of course the next president would be worse (he wasn’t). Serious bullshit out of the mouths of the left in this country.

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  13. Where exactly in the 4th amendment does it say that the amendment only applies on US soil, after you’ve crossed the border?

    The 4th amendment, like almost all of the Bill of Rights states what the US government CANNOT do to people. It doesn’t state anything about loopholes allowing the US to abuse the intrinsic rights of people elsewhere or due to their citizenship status, let alone for citizens crossing the border.

  14. Funny, my copy of the Constitution (including the 4A) doesn’t include any “border exception”. Any court that cannot interpret the law as written is clearly illegitimate, and should be treated as such. If this makes it a little harder for government, that’s the whole fuckin’ point, ya morons.

    1. +1 common sense

  15. Please kindly until Supreme Court hands down their Caniglia v. Strom decision and you
    https://wapexclusive.com ,find out the cops don’t need warrants for anything at all. Please

    1. LOL! Or CRY Out Loud. Circumstances and outcomes may vary. Just don’t be dark-skinned. As a white USN
      veteran, ICE has only said, “Welcome home”.

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  17. Warrants are optional under the Biden police reforms.

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