Court Decisions Support Rights Against Warrantless Digital Searches at the Border

In two separate rulings last week, Federal Courts defended individuals entering the U.S. against warrantless digital search and seizures at the U.S. Border.

Just three of the items many people carry through the U.S. Border and which are currently being searched freely without any requirement for a warrant.

The Department of Homeland Security’s Customs and Border Protection group conducted over 30,000 searches of laptops, smartphones, and other digital devices in 2017. That compares to over 19,000 devices searched in FY 2016 and only 8,503 devices in FY 2015. The numbers are going up fast.

Immigration and Customs Enforcement has formal policies in place which allow for forced warrantless searches of digital technology.

Both organizations justify this using the logic that there is an established policy to allow searching of baggage and packages at the border to keep out contraband. The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), both parties to some of the lawsuits filed against the two federal agencies noted here, insist that searching a suitcase for drugs, weapons or other contraband, and doing a forensic dump on a multi-gigabyte digital device with extensive personal data present on it, including email, financials, and other private documents, are far different issues.

The agencies realize they are doing a far more detailed search of equipment than just a quick browse, too. Shortly after the Trump administration announced some of its early 2017 immigration bans, it also placed an order for $2 million of specialized mobile device hacking equipment from Israeli firm Cellebrite. The so-called Universal Forensic Extraction Devices (UFEDs) allow rapid data extraction and sorting from portable devices. They cost roughly between $5,000 and $15,000 per device, and the $2 million order was at the time recognized as one of the biggest single purchases ever for UFEDs.

Based on the two court rulings this past week, the Feds may not get as much use out of that equipment as they had hoped.

On May 10, the Fourth Circuit Court of Appeals in Virginia said in one ruling that border agents cannot use such digital forensics tools to search devices travelers may be carrying on a generalized basis. To do such a search, there must be what the court referred to as “individualized suspicion” that those individuals whose devices are being searched may have committed a crime.

Only a day later, Judge Denise Casper of a Massachusetts Federal court ruled on an important motion in a case seen as one of the more important ones.

The case involved 11 plaintiffs, 10 of which are U.S citizens and one of which was a permanent resident. All 11 had their electronic devices seized, searched, and then released when they entered the U.S. from abroad.

The lawsuit is known as Alasaad v. Nielsen, and was previously covered in Trillions (see: “U.S. Suit Against Warrantless Searches of Travelers’ Electronic Devices Urged to Go Forward”, published January 31, 2018). In the suit, the EFF and ACLU and the 11 plaintiffs had sued in Massachusetts’ Federal Court that the government should not be allowed to conduct searches – or confiscations – of electronic devices without probable cause. The U.S. government argued in a motion filed earlier this year that the plaintiffs did not have appropriate standing the case. The government also argued as part of its motions  that the Fourth Amendment clause of the U.S. Constitution protecting personal privacy and the right to be free from unreasonable government intrusion does not apply to border searches.

In Thursday’s ruling, Federal Court Judge Casper said that although she would agree the law covering the Border searches was not entirely clear, that past rulings which said there were increased privacy concerns around searches of digital data had relevance here. In her decision, she wrote that, “Although Defendants [the Federal Government agencies involved and their heads] may be correct that the border is different, ...the Supreme Court and First Circuit have acknowledged that digital searches are different too since they ‘implicate privacy concerns far beyond those implicated’ in a typical container search.”

One of Casper’s citations to support her position was a U.S. Supreme Court decision from 2014. In that decision, the Court said police must secure a warrant to search a cell phone from someone just arrested.

Casper also threw out the argument that the plaintiffs had no standing. All were either U.S. citizens or legal residents, which affords them Constitutional protections. They also had all been subjected to warrantless digital searches and/or seizures at the order.

In commenting about the ruling Thursday, Sophia Cope, a staff attorney for the EFF, said, “As we’ve long argued, the border is not a Constitution-free zone.”

Lawyers for the Trump administration’s side of the case did not have any public comment on the ruling at this time.

The case is proceeding forward. When the eventual court rulings on the issue are finally made, they may represent a landmark decision of the highest order.

While waiting for that decision, find out how to protect yourself against these kind of searches with Trillions' guide on “How to Keep Your Electronic Data Safe as Border Searches Increase”, published on September 12, 2017.