Suspicionless searches of international travelers’ electronic devices at U.S. ports of entry violate the Fourth Amendment, according to a new federal court ruling.
The decision is the result of a lawsuit filed by the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and ACLU of Massachusetts on behalf of 11 travelers whose smartphones and laptops were searched without individualized speculation of contraband.
“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said in a statement.
“By putting an end to the government’s ability to conduct suspicionless fishing expeditions,” she continued, “the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”
According to U.S. Customs and Border Protection (CBP), officers conducted more than 30,000 electronic device searches during fiscal year 2017—more than three times that of FY15 (8,503), and about 50 percent higher than FY16 (19,033).
International travelers entering the United States have reported numerous instances of improper searches—including Zainab Merchant, whose phone was searched, despite her informing agents that it contained privileged attorney-client communications.
Merchant is one of 11 plaintiffs who, with the help of the ACLU and EFF, sued the Department of Homeland Security and two of its component agencies, CBP and ICE (Immigration and Customs Enforcement).
“We argue that border searches of electronic devices violate the First and Fourth Amendments to the U.S. Constitution when conducted without a warrant based on probably cause that a device contains data indicating that the traveler had broken an immigration or customs law,” EFF wrote in an explanation of the case.
Boston Logan Airport made headlines recently when immigration officers reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded him for friends’ social media posts critical of the U.S. government, and denied him entry to the country.
“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,” EFF senior staff attorney Sophia Cope said.
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