US violated Constitution by searching phones for no good reason, judge rules

By Jon Brodkin

US Customs and Border Protection agents participate in a training exercise at the border with Mexico.
Enlarge / US Customs and Border Protection agents participate in a training exercise at a vehicle entry point along the border with Mexico on November 5, 2018, in Hidalgo, Texas.

The United States government violated the Fourth Amendment with its suspicionless searches of international travelers' phones and laptops, a federal court ruled today.

The ruling came in a case filed "on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at US ports of entry," the American Civil Liberties Union (ACLU) said today. The ACLU teamed up with the Electronic Frontier Foundation (EFF) to fight the government on behalf of plaintiffs including 10 US citizens and one lawful permanent resident.

The order from a US District Court in Massachusetts limits what searches can be made by US Customs and Border Protection (CBP) and US Immigration and Customs Enforcement (ICE).

"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," the ACLU announcement said. "Border officers must now demonstrate individualized suspicion of contraband before they can search a traveler's device."

Because of the ruling, travelers will be able to "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," EFF Senior Staff Attorney Sophia Cope said.

The US government could appeal the ruling.

Judge: Searches require reasonable suspicion

US District Judge Denise Casper's ruling granted the plaintiffs' request for a declaration that the government violated their constitutional rights by conducting searches and seizures "of electronic devices absent a warrant supported by probable cause."

The ruling said:

[T]he Court declares that the CBP and ICE policies for "basic" and "advanced" searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband for both such classes of non-cursory searches and/or seizure of electronic devices; and that the non-cursory searches and/or seizures of plaintiffs' electronic devices, without such reasonable suspicion, violated the Fourth Amendment.

CBP defines "advanced" searches as those "in which an officer connects external equipment, through a wired or wireless connection, to an electronic device, not merely to gain access to the device, but to review, copy and/or analyze its contents." Anything short of that is a "basic" search.

The court ruling said that CBP's policy was "to require reasonable suspicion or a national security concern for any advanced search, but no showing of cause for a basic search." The judge ruled that both types of searches require reasonable suspicion.

"Although governmental interests are paramount at the border, where such non-cursory searches—even 'basic' searches as broadly defined under CBP and ICE policies as well as the 'advanced' searches of plaintiffs' electronic devices—amount to non-routine searches, they require reasonable suspicion that the devices contain contraband," Casper wrote.

It wasn't all good news for plaintiffs though: Judge Casper's ruling denied their request for an injunction that would have more strictly limited the government's ability to search and seize devices. But the ruling denied the request for injunctive relief without prejudice, so it can be raised again in future proceedings. To apply a nationwide injunction, the court would need "further briefing from the parties" involved in the case, Casper wrote.

Despite that, the ACLU said the ruling should lead to real change in government policy.

"This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year," ACLU staff attorney Esha Bhandari said. "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."

Some plaintiffs’ phones were searched repeatedly

Casper's ruling contains some details of the contested searches and seizures. Nadia Alasaad, one of the 11 plaintiffs, "has twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her daughters without their headscarves as required in public by their religious beliefs," the ruling said.

One plaintiff "observed a CBP officer viewing communications between her and her lawyer," another plaintiff's "phone contained information from his work as a journalist," and another plaintiff's "phone was a work phone officially owned by NASA's Jet Propulsion Laboratory," the ruling said. Federal officials did not dispute that they retained information that they got from these searches of electronic devices.

Multiple plaintiffs had their electronic devices seized during the border searches, although they were later returned.

The ruling noted that the harm to plaintiffs from the searches is ongoing, as "agents have the potential to access information on a traveler's past searches and... such information may be used to inform decisions on future searches."

The ruling includes this example:

The recent additional search of [plaintiff Suhaib] Allababidi's devices on July 6, 2019, furthers plaintiffs' argument as to the risk of future harm. Allababidi had previously been subject to a border search on January 24, 2017. When he declined to provide the password to his locked phone, CBP seized it to conduct an examination. On July 6, 2019, Allababidi arrived at the Toronto airport for a flight to Dallas, traveling with a smartphone and a laptop. CBP officers searched both devices. That such search of electronic devices continues for plaintiffs, even in the midst of their ongoing legal challenges to same, serves as further, undisputed indication of the sufficient likelihood that, unremedied, such alleged harm will continue in the future, particularly given the plaintiffs' future plans for international travel.

The government told the court that electronic-device searches were conducted on .007% of the hundreds of millions of international travelers processed by CBP in 2017. But the judge wrote that "the number of reported electronic devices likely is underestimated" because of apparent shortcomings in how CBP calculates its data and because "ICE does not maintain records of the number of basic searches that it conducts." The judge concluded that "the likelihood of plaintiffs having their electronic devices searched without cause is not a remote risk."