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.