Lawsuit Aims to Curtail Warrantless Searches of Electronic Devices at US Border

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

New information obtained as a result of depositions and document discovery in an ongoing lawsuit should make anyone concerned about privacy seriously consider crossing the US border without carrying any electronics devices.

I’m reminded of the old AMEX traveler’s check ad: Don’t Leave Home Without Them. Now, with respect to electronic devices,  the advice should be: don’t leave home with them.

Warrantless searches of electronics devices have nearly quadrupled at the US border since 2015, rising to 33,295 at the end of 2018. These  are conducted for reasons broader than simple immigration or customs enforcement.

Immigration and Customs Enforcement (ICE) policy allows border agents to search and confiscate anyone’s electronic device for any reason or for no reason at all. Customs and Border Protection (CBP) may conduct a search of a device at the border without a warrant or probable cause, and usually without even reasonable suspicion.

What happens if you refuse to allow the search? Well, I hope you don’t have plans to meet anyone for dinner on the day you make that decision. The short answer is that the government would then simply choose to seize your device – and take its sweet time in getting it back to you. During that time, border agents – or anyone they may choose to hand it off to –  can study your device anyway. There’s no sensible provision that would lockdown your device until a judge ruled on whether a warrant was necessary to search the device.

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) moved for summary judgment Tuesday in a case originally filed against the Department of Homeland Security in September 2017 on behalf of eleven plaintiffs. (A roster of legal documents can be found here).

The government moved to dismiss the claim, citing the “border search exemption”, arguing that the First and Fourth Amendments do not apply to its border activities.

At some level, let’s say for the sake of argument, such an exemption may have made sense in the past, since in the pre-digital world, they only covered baggage and one’s person. If you could leave the border and take your bags with you, you would be able to dump the contraband border officials might have been concerned about.

Now, with the invention of digital devices – and the government claiming the same set of rules apply –  border officials can root around wholesale in all those aspects of one’s life that are stored there. No judge is ever even asked to rule on the scope or necessity of these fishing expeditions.

Legal Proceedings

In May 2018, US federal district court judge Denise Casper dismissed the government’s  motion to dismiss, and allowed the lawsuit to proceed.

Since May 2018, the EFF and ACLU have reviewed documents obtained in response to discovery requests and conducted depositions. As a result of those investigations, plaintiffs asked the judge to skip the trial phase entirely and rule on their behalf.

(The motion for summary judgment may be found here. Further supporting information uncovered in pretrial proceedings may be found here.)

The ACLU summarized the most alarming of the scope of searches conducted  in a press release:

The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws. The agencies’ policies allow officers to search devices for general law enforcement purposes, such as investigating and enforcing bankruptcy, environmental, and consumer protection laws. The agencies also say that they can search and seize devices for the purpose of compiling “risk assessments” or to advance pre-existing investigations. The policies even allow officers to consider requests from other government agencies to search specific travelers’ devices.

In addition, the searches aren’t limited to the person who holds the device, but also extend to friends, family, and acquaintances. The ACLU again:

CBP and ICE also say they can search a traveler’s electronic devices to find information about someone else. That means they can search a U.S. citizen’s devices to probe whether that person’s family or friends may be undocumented; the devices of a journalist or scholar with foreign sources who may be of interest to the U.S. government; or the devices of a traveler who is the business partner or colleague of someone under investigation.

What Happens to My Personal Information Once the Government Gets its Mitts on It?

Of course, once collected, who knows where this information goes? It seems the ACLU has an answer to that question, too:

Both agencies allow officers to retain information from travelers’ electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies.

The Information Obtained Shows What the Government Is Doing, Is This Constitutional?

Obviously, the government either thinks it is – or more cynically, that no executive official, congressional committee, or judge will put a stop to its behavior.

The EFF and ACLU are arguing the government is going too far. Put in simple constitutional terms? As an EFF press release reports:

“The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad,” said EFF Senior Staff Attorney Adam Schwartz. “ICE and CBP policies and practices allow unfettered, warrantless searches of travelers’ digital devices, and empower officers to dodge the Fourth Amendment when rifling through highly personal information contained on laptops and phones.”

Although the government would like us to think that normal constitutional protections don’t apply at the border, they in fact do – although the jurisprudence on the issue is admittedly shakey. Along with other constitutional prohibitions against unreasonable searches and seizures, the scope of these protections has deteriorated significantly in recent decades – initially eroded as part of the war on crime, followed by the war on terror.

Nonetheless, over to the EFF again:

“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,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “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.”

In addition to asking that in future the government obtain a warrant before conducting border searches,  the plaintiffs seek to have the data obtained from these warrantless searches expunged from government databases.

What’s Next?

I’m not sure whether Judge Casper will go so far as to grant the summary judgment motion in the plaintiff’s favor. I’m not a litigator, so my call on this would not be particularly worthwhile, so I won’t hazard one.

If she does, her decision will certainly be appealed.

If she doesn’t, the case will proceed to trial – where the result will certainly be appealed.

There’s too much at stake here for this lawsuit to shake out otherwise.

I’m not at all confident that this particular genie can be put back into its bottle – especially given the current make-up of the Supreme Court.

So, what can we do?  Well, it brings me back to where I started this post — seriously consider what devices you take across US borders if you’re concerned about your privacy. I don’t as it happens have a smartphone – although I know most people do. I think if stopped and questioned at the border, that true fact might somehow single me out for additional scrutiny.

But I do have a laptop, which I rely on for my livelihood.

You might have thought that the existence of this lawsuit might have led ICE and CBP to be more circumspect in their search policy while it was pending. Alas, the opposite has been the case.

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  1. Joe Well

    I would just add that other countries, especially Canada, have been doing this for a long time with little scrutiny, so wiping your devices or disconnecting cloud services was always a good idea.

    Also #abolishice

    How can anyone think that this thoroughly abusive agency can be reformed?

    1. Cal2

      How? about a tradeoff?

      Democrats, real Democrats, could offer to pass a bill that eliminated ICE, and why not DHS,
      at the same time?, that The Department of Education is eliminated.
      Republicans might go for that.

      1. Joe Well

        Would the Republicans really want to get rid of the Department of privatizing public schools and testing industry subsidization?

  2. John Beech

    Interesting article, which along with confiscatory practices by law enforcement (money, vehicles, homes) show a depressing path to a future which saddens me. While I grok the argument behind the practice, the fact fallible humans are in charge opens it to abuse.

    Regarding not carrying a smart phone, I was once smug about not carrying one. I didn’t hold myself as better than all those around me using them but when I was being honest with myself there was definitely a bit of superiority in my attitude. My point? I carry one now. What changed? The realization I was being stupid and willfully blind. In fact my actions were those of the creative who excelled with a quill sneering at those using a ball point pen. Of the experienced buggy driver resenting the automobile. Worse, of the caveman with a finger and pigments scoffing at a Rembrandt with a palate and canvass. Facts are a ‘smart’ phone is ever so much more than a phone.

    For me, primarily, it’s the camera I always wished I had on me when I didn’t. Now, it’s also a surface speed calculator for when I’m having a discussion with my foreman regarding manufacturing something on a lathe or mill. It’s a compass (no, I don’t use it a lot but it’s there and handy sometimes), as well as a protractor and angle finder (something else I don’t use a lot), a diary of what I’ve had for breakfast, lunch, and dinner going back years, which my doctor sometimes peruses. It’s also a record of my blood pressure and weight because both devices (cuff and scale) communicate the data to my phone. Speaking of which, phone is but one function of what is actually a computer. And I can write with it. Maybe not a novel, but definitely a short story. And certainly the contents of this article. And it’s with me when the laptop isn’t. It’s also entertainment. Reddit for example, or Solitaire, or in the case of my wife, audio books and books to read in bed where the screen can be reversed to white on black to minimize light spillage that may disturb me. I mentioned it being a compass, but it’s more because of GPS it’s a map, and one that speaks directions to me if I desire to keep my eyes on the road. These days i can edit a video using one of these tiny computers. Anyway, imagine being willfully less able to see because you thought yourself too superior to wear Franklin’s invention of bifocals and this neatly summarizes those who imagine themselves not using a smart phone as better. This was me when I used a flip phone and was too stubborn to change. Today? I’m glad I did.

    Finally, and addressing your point, my sister-in-law travels internationally for a major computer corporation. These days, they issue her a laptop expressly for international travel. One with tools for creation, a compiler, etc. for if the muse strikes, but storage is to the cloud, or not at all. They (the employees and principals) absolutely will not carry data over a border. She even has a naked iPhone for the express needs of travel, as well. After all, it’s 1984.

    1. The Rev Kev

      In your last sentence, that was a very relevant point. Corporate people have found border guards demanding access to all their vital and secret trade materials on their mobiles and laptops, including passwords used by corporations themselves. I can’t help but wonder if a rival corporation may have arranged this technological peep show for their own benefit using border personnel to do it on their behalf.
      They should really rethink this idea of having a hundred miles border zone too come to think of it. It boggles the imagination that to out of every three Americans live within these zones and this can be technically made subject to these loopy laws-

      1. j7915

        IIRC there was an article some time ago about ice/border security who were turned before/as they were even recruited and hired. The smugglers go to them with offers that were hard to turn down.

        The only thing missing from the 100 mile security strip from the border is the desire by ICE that this should apply to international airports in the heartland. Long live the DDR and Stasi.

    2. Robt Post

      Yes, but Franklin’s glasses don’t carry a copy of your your life, your friends, where you were yesterday, where you’re going tomorrow, which doctor you have an appointment with next month, your correspondence, etc., etc. Not to mention, after they have it, where does it go after they give you back your device? They can pass it off hundreds of federal agencies, state and local governments, police at all levels, even foreign governments, all at the speed of light in the time it takes to click a mouse. What what if they misidentify/misinterpret your info in some way that paints you in a bad light? They’re only human, after all. Perhaps, UPS’ing your devices to your first hotel you’re going to after you clear the border might be an option?

  3. Synoia

    Install a personal server.
    Access it through a dynamic dns url.
    Access it through Remote Desktop.

    One can buy a used inexpensive server for $200 from eBay.

    Or, get a cloud account….Not AWS.

    1. Math is Your Friend

      According to US courts, any US company can be compelled to hand over any data they can access anywhere in the world, secretly, if such is demanded by a police or government agency.

      Finding a cloud service that has no connection to US companies may be a bit difficult.

  4. CraaaaaaaaaaaaaaaaaazyChris

    Something like this Pi-Top 3 may be the ideal laptop of the moment for travel situations. Curious that it only comes in green-screen green…. Its killer feature for border crossings is that, being based on a Raspberry Pi, the ‘hard drive’ is a removable microSD card. One could have several of them secreted in various orifices as well as a bootable ‘decoy’ microSD in the laptop.

  5. Jos Oskam

    I have been reading the comments above. Special empty laptops for travelling. Burner phones. Personal servers with DynDNS and RDP. Small removable storage. Let’s add VPN’s, strong encryption, dataless devices, cloud accounts, whatever. And all this not to be safe from hackers and criminals but to protect yourself from your own government.

    One does wonder what the world is coming to.

  6. Math is Your Friend

    Lest anyone think that the 100 mile border zone is 100 miles from another country… it is also 100 miles from an ocean, or an airport that receives flights from other countries, according to CBP and ICE policy.

    As for ‘clean’ laptops… if it goes out of your sight, or if they plug anything into it, or run any programs on it, you should consider it compromised. There are currently tools out there (some leaked with ‘escaped’ CIA and NSA attack frameworks) that can compromise a computer and be undetectable by anything running at the operating system level.

    A partial defense against this would be to remove the hard drive (drive firmware can be overwritten but cannot be read) and run only from a read only operating system copy that includes the application software you will need, so that each power on starts with a known clean OS and user suite.

    Another delightful nuance of this situation is that if you are not a US citizen or permanent residents you have no rights at all, again by explicit government policy… so for you the entire country is worse than the border zone for citizens. Caveat: Not being either American or a lawyer, I am not sure how this would work out in practice.

  7. Oregoncharles

    A really malicious idea, for the more savvy among us: before crossing the border, prep the device with the worst virus you can find, all ready to spring when it’s opened. Of course, this would require a way for you to protect yourself from it.

    Honestly, I have no idea whether this is workable or how well government computers would be protected – bu ton the available record, not well.

    1. j7915

      Not quite the virus you have in mind I suppose, but maybe that chinese lady at mar a lago had some surprising viruses or maybe data on her thumb drives???

      short circuit instructions for the battery of the laptop?

      Medical viruses a la Kim Jung Un’s secret service would be interesting. That contact infection was in a scifi short story in 2016-17

  8. Raulb

    The idea of going through someone’s personal papers is totalitarian. What is the difference between this and the stasi or any police state ruffling through your papers? Just the thought of it is dehumanizing, imagine the actual reality of an uniformed officer empowering themselves to demand your phone or laptop not to check it physically, but to read your personal data and thoughts? How dehumanizing is this?

    This is highly invasive and a democracy by definition cannot include this. If you want to search through people papers and dehumanize them it is a police state.

    The fact that it can even be discussed with an air of normalcy and how citizens submit suggests how easy it is to impose authoritarian systems, and why thinking how something was allowed to happen in a historical context and can’t happen again is a kind of deception.

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