EFF's Fight to End Warrantless Device Searches at the Border: A Roundup of Our Advocacy
EFF has been working on multiple fronts to end a widespread violation of digital liberty—warrantless searches of travelers’ electronic devices at the border. Government policies allow border agents to search and confiscate our cell phones, tablets, and laptops at airports and border crossings for no reason, without explanation or any suspicion of wrongdoing. It’s as if our First and Fourth Amendment rights don’t exist at the border. This is wrong, which is why we’re working to challenge and end these unconstitutional practices.
EFF and the ACLU filed a brief today in our Alasaad v. Nielsen lawsuit to oppose the government’s attempt to dismiss our case. Our lawsuit, filed in September 2017 on behalf of 11 Americans whose devices were searched, takes direct aim at the illegal policies enforced by the U.S. Department of Homeland Security and its component agencies, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE). In our brief we explain that warrantless searches of electronic devices at the border violate the First and Fourth Amendments, and that our 11 clients have every right to bring this case.
This is just the latest action we’ve taken in the fight for digital rights at the border. EFF is pushing back against the government’s invasive practices on three distinct fronts: litigation, legislation, and public education.
A Rampant Problem
Over the past few years there has been a dramatic increase in the number of searches of cell phones and other electronic devices conducted by border agents. CBP reported that in fiscal year 2012 the number of border device searches was 5,085. In fiscal year 2017, the number had increased to 30,200—a six-fold increase in just five years.
DHS claims the authority to ransack travelers’ cell phones and other devices and the massive troves of highly personal information they contain. ICE agents can do so for any reason or no reason. Under a new policy issued earlier this month, CBP agents can do so without a warrant or probable cause, and usually can do so without even reasonable suspicion.
Also, agents can and do confiscate devices for lengthy periods of time and subject them to extensive examination.
These practices are unconstitutional invasions of our privacy and free speech. Our electronic devices contain our emails, text messages, photos and browsing history. They document our travel patterns, shopping habits, and reading preferences. They expose our love lives, health conditions, and religious and political beliefs. They reveal whom we know and associate with. Warrantless device searches at the border violate travelers’ rights to privacy under the Fourth Amendment, and freedoms of speech, press, private association, and anonymity under the First Amendment.
These practices have existed at least since the George W. Bush administration and continued through the Obama administration. But given the recent dramatic uptick in the number of border device searches since President Trump took office, a former DHS chief privacy officer, Mary Ellen Callahan, concluded that the increase was “clearly a conscious strategy,” and not “happenstance.”
But the U.S. border is not a Constitution-free zone. The Fourth Amendment requires the government to obtain a probable cause warrant before conducting a border search of a traveler’s electronic device. This follows from the U.S. Supreme Court case Riley v. California (2014). The court held that police need a warrant to search the cell phones of people they arrest.
The warrant process is critical because it provides a check on government power and, specifically, a restraint on arbitrary invasions of privacy. In seeking a warrant, a government agent must provide sworn testimony before a neutral arbiter—a judge—asserting why the government believes there’s some likelihood (“probable cause”) that the cell phone or other thing to be searched contains evidence of criminality. If the judge is convinced, she will issue the search warrant, allowing the government to access your private information even if you don’t consent.
Right now, there are no such constraints on CBP and ICE agents—but we’re fighting in court and in Congress to change this.
On September 13, 2017, EFF along with ACLU filed our lawsuit, Alasaad v. Nielsen, against the federal government on behalf of ten U.S. citizens and one lawful permanent resident whose smartphones and other devices were searched without a warrant at the U.S. border. The plaintiffs include a military veteran, journalists, students, an artist, a NASA engineer, and a business owner. Several are Muslims or people of color. All were reentering the country after business or personal travel when border agents searched their devices. None were subsequently accused of any wrongdoing.
Each of the Alasaad plaintiffs suffered a substantial privacy invasion. Some plaintiffs were detained for several hours while agents searched their devices, while others had their devices confiscated and were not told when their belongings would be returned. One plaintiff was even placed in a chokehold after he refused to hand over his phone. You can read the detailed stories of all the Alasaad plaintiffs.
In the Alasaad lawsuit, we are asking the U.S. District Court for Massachusetts to find that the policies of CBP and ICE violate the Fourth Amendment. We also allege that the search policies violate the First Amendment. We are asking the court to enjoin the federal government from searching electronic devices at the border without first obtaining a warrant supported by probable cause, and from confiscating devices for lengthy periods without probable cause.
In the past year, EFF also has filed three amicus briefs in U.S. Courts of Appeals (in the Fourth, Fifth, and Ninth Circuits). In those briefs, we argued that border agents need a probable cause warrant to search electronic devices. There are extremely strong and unprecedented privacy interests in the highly sensitive information stored and accessible on electronic devices, and the narrow purposes of the border search exception—immigration and customs enforcement—are not served by warrantless searches of electronic data.
EFF is urging the U.S. Congress to pass the Protecting Data at the Border Act. The Act would require border agents to obtain a probable cause warrant before searching the electronic devices of U.S. citizens and legal permanent residents at the border.
The Senate bill (S. 823) is sponsored by Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY). Rep. Polis (D-CO), Rep. Smith (D-WA), and Rep. Farenthold (R-TX) are taking the lead on the House bill (H.R. 1899).
In addition to creating a warrant requirement, the Act would prohibit the government from delaying or denying entry or exit to a U.S. person based on that person’s refusal to hand over a device passcode, online account login credential, or social media handle.
You can read more about this critical bill in our call to action, and our op-ed in The Hill. Please contact your representatives in Congress and urge them to co-sponsor the Protecting Data at the Border Act.
Finally, EFF published a travel guide that helps travelers understand their individual risks when crossing the U.S. border (which includes U.S. airports if flying from overseas), provides an overview of the law around border searches, and offers technical guidance for securing digital data.
Our travel guide recognizes that one size does not fit all, and it helps travelers make informed choices regarding their specific situation and risk tolerance. The guide is a useful resource for all travelers who want to keep their digital data safe.