GOVERNMENT MUST HAVE REASONABLE SUSPICION OF DIGITAL CONTRABAND BEFORE SEARCHING ELECTRONIC DEVICES AT THE U.S. BORDER
In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”
“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF senior staff attorney.
The district court order puts an end to CBP and ICE’s asserted authority to search and seize travelers’ devices for purposes far afield from the enforcement of immigration and customs laws. Border officers must now demonstrate individualized suspicion of contraband before they can search a traveler’s device.
The number of electronic device searches at U.S. ports of entry has increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior.
International travelers returning to the United States have reported numerous cases of improper searches in recent months. A border officer searched plaintiff Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications. An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.