Border patrol agents are conducting "warrantless and suspicionless" searches of travelers' phones and laptops, according to a motion filed in federal court by the Electronic Frontier Foundation (EFF) and ACLU on Tuesday. The groups say the alleged searches violate First and Fourth Amendment rights.
"Today's electronic devices contain vast quantities of highly personal information that the Supreme Court has repeatedly held requires a warrant to be searched in other contexts," the filing in the U.S. District Court of Massachusetts says. "The border search context is no different."
The filing is part of a 2017 lawsuit by the groups against the Department of Homeland Security (DHS). The suit says 11 travelers — 10 U.S. citizens and one lawful permanent resident — had their electronic devices searched at the U.S. border without a warrant.
Customs and Border Protection (CBP) officers are allowed to confiscate devices "ordinarily" for up to five days, and Immigration and Customs Enforcement (ICE) officers can confiscate them for up to 30 days, the suit says. But both agencies, which are part of DHS, are allowed to indefinitely extend how long they hold onto those devices.
According to the court filing, these warrantless searches give agents access to all records kept on travelers' gadgets, including texts, emails, photos, videos and search histories. Officers can share information obtained from these devices with other government agencies — including foreign governments — even for matters not related to border security. They can also inspect devices for reasons not directly related to the traveler. For instance, officers can check the devices of a journalist who has sources who might be of interest to the government. (The plaintiffs include two journalists.)
CBP policy says device searches must be based on "reasonable suspicion" of illegal activity or "national security concern." The filing says CBP officers conducted 33,295 device searches in fiscal year 2018, compared to just 5,085 in 2012. Even so, CBP and ICE "do not know" how many warrantless searches uncover potential evidence of criminal activity, the suit says.
The ACLU and EFF are asking the court to require DHS to secure warrants for device searches.
A spokesperson for CBP declined to comment on pending litigation. A representative for ICE did not immediately respond to a request for comment.
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