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.
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 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.
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.