Editorial: Customs and Border Protection claims unconstitutional authority to search American travelers’ digital devices

  • U.S. Customs and Border Protection agents are claiming sweeping authority to search American travelers’ digital devices at ports of entry, including airports and border stations. CBP agents conducted more than 33,000 searches of smartphones and laptops at the nation’s borders during 2018 without having to show probable cause or obtain a warrant, a 400% increase from 2015. And CBP now claims authority to search travelers’ devices for general law enforcement purposes, including “intelligence gathering.” (John Gibbins/San Diego Union-Tribune/TNS)

Published: 11/2/2019 10:10:18 PM

The highway checkpoints conducted by U.S. Customs and Border Protection agents such as the one on Interstate 89 in Lebanon this past summer are certainly annoying, but as a major infringement of constitutional and privacy rights, they pale in comparison with the agency’s assertion of sweeping authority to search American travelers’ digital devices at ports of entry, including airports and border stations.

CBP agents conducted more than 33,000 searches of smartphones and laptops at the nation’s borders during 2018 without having to show probable cause or obtain a warrant, a 400% increase from 2015. These intrusions are obviously a special concern for lawyers, doctors and journalists, whose devices may contain not only their own private information but also that of clients, patients and confidential news sources.

But this practice has implications for all who travel abroad and whose privacy is breached by these fishing expeditions. We say fishing expeditions because unlike the traditional authority of border control agents to search belongings for contraband and to determine who may be admitted to the United States, CBP now has expanded the scope of those searches. National Public Radio reported earlier this year that as the result of depositions taken in a lawsuit, the American Civil Liberties Union says it has learned that CBP now claims authority to search travelers’ devices for general law enforcement purposes, including enforcement of hundreds of federal laws and “intelligence gathering.”

Under a 2018 policy, CBP conducts two types of inspections of electronic devices, basic and advanced, or forensic. The first involves an officer inspecting the contents of a device manually; the second involves connecting it to another electronic device that uses sophisticated software to inspect, scan, index and sometimes copy its contents. This policy allows basic searches to be performed without any suspicion of wrongdoing, while the forensic version requires “reasonable suspicion” of illegal activity — a legal standard falling somewhere between no suspicion and probable cause.

In a landmark 2014 ruling, the U.S. Supreme Court recognized that the privacy implications of cellphone searches are extraordinary and required police to obtain a warrant before searching the phone of someone who has been arrested. But it has not spoken about the constitutionality of cellphone searches at the border for U.S. citizens re-entering the country, and lower courts have been divided on the issue.

That’s why legislation co-sponsored by Sen. Patrick Leahy of Vermont is much needed. Leahy is reintroducing legislation that would require federal agents to have reasonable suspicion before conducting manual searches; to have probable cause before seizing a device; and to obtain a warrant before conducting forensic searches.

This is only what the Fourth and First amendments to the Constitution require. The Fourth bars unreasonable searches and seizures, and its application to the border searches is obvious. But the First Amendment, which secures freedom of expression and association, is also implicated, in that travelers may well feel inhibited in making contacts abroad or engaging in lawful activities that might draw scrutiny from armed government agents.

Cellphones are not like suitcases that, at worst, may cause mild embarrassment if their contents are rummaged through at the border. A search of a cellphone is the virtual equivalent of having officers come to your house without a warrant and turn it inside out, pulling open file cabinets to examine medical, financial, business and social records, before moving on to browse your photo albums and read your diary and personal correspondence. It’s unwarranted, in both senses, and in our view unconstitutional.




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