New Depo Evidence About Border Searches of Phones, Laptops
In September 2017, the ACLU and the Electronic Frontier Foundation* sued the U.S. government over warrantless searches of phones and laptops at ports of entry.
The government asserts that it has the power to conduct these searches. After all, the Supreme Court has said that:
The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.”
United States v. Flores-Montano, 124 S.Ct. 1582 (2004).
Flores-Montano, however, had to do with searching a car’s gas tank for drugs. Should that ruling also apply to phones and laptops?
Putting the law aside for now, the EFF and ACLU have had a pretty interesting go of things in the discovery phase of their suit.
Here’s how they summarize the evidence they’ve gathered:
BP 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.
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.
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.
This, the EFF and ACLU contend, is an impermissible “end run around the Constitution.” We’ll have to wait and see if the courts agree.
-KitJ
*EFF. Look, I know that immprofs are aware of the ACLU, but I wasn’t sure about EFF.