If you’re traveling outside the United States this summer you might want to rethink taking your electronics along. Government agents have been detaining American citizens without arrest, searching, and in some cases downloading the entire contents of phones, tablets, laptops, and other devices. And this all happens without a warrant or access to an attorney.
“The border has become a rights-free zone for Americans who have to travel,” Senator Ron Wyden said in a statement to TAC. “The founders never could have imagined that the government would be able to sift through your entire digital life, from pictures to emails and even where you’ve been, just because you decide to take a vacation or travel for work.”
Border searches of electronic devices have exploded at an exponential rate in recent years: in 2018, U.S. Customs and Border Protection (CBP) searched over 33,295 smartphones, laptops, and other electronic devices; up nine percent from fiscal year 2017 and over six times the number searched in 2012. And that’s just the statistics from CBP; Immigration and Customs Enforcement (ICE) does not maintain records of the number of electronic device searches it conducts.
“The government is accessing all your private data,” Sophia Cope, senior staff attorney with the Electronic Frontier Foundation (EFF), told TAC. These “deeply intrusive” searches of electronic devices “reveal a lot about you: your emails, contacts, bank history, internet searches, medical history, social media usage, and political beliefs.”
The “border is not a Constitution-free zone,” said Cope. But right now, it’s essentially functioning as one, as laws that protect Americans privacy are being run over roughshod by agents at the border.
In a unanimous decision in 2014, the Supreme Court ruled that when a person has been arrested, law enforcement need a warrant to search their electronic devices.
But government agents at the border assert that they can search anyone’s device, at any time, for any reason, or for no reason at all. CBP has largely been operating under its own rules; they say they do not need a warrant, or even probable cause, to conduct this digital invasion because of the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.
A lawsuit brought by EFF and the American Civil Liberties Union (ACLU) argues that these searches are in violation of the First and Fourth Amendments of the U.S. Constitution.
For travelers whose professions require they maintain the privacy of sensitive information, like journalists, attorneys, clergy, and doctors, the effect of these searches can be quite chilling. We have laws that preserve the privacy of patients and attorneys’ clients—even journalists are protected by shield laws in most states—but there’s no such protection when CBP seizes electronic devices.
Whether the searches are politically motivated or targeting specific groups or occupations is unclear.
“All we know from the government is that the number of device searches are going up—we’ve seen a sharp increase in the last 3 years,” ACLU attorney Esha Bhandari told TAC. “We don’t know what percentage are U.S. citizens; we don’t know the race or religion of people being searched; we don’t know the professions of people being searched.”
The ACLU and EFF have filed a lawsuit against the Department of Homeland Security, CBP, and ICE on behalf of eleven plaintiffs, including a NASA engineer, a professor, a computer programmer, a filmmaker, an artist, a limousine driver, and journalists who had been subjected to warrantless searches at the border. All are U.S. citizens or legal permanent residents.
The 11 plaintiffs to this case are “from all walks of life, all backgrounds,” said Bhandari. “They filed suit because they were so upset by the experience they had.”
One person detailed to Amnesty International how she was selected for secondary screening at the border, locked in a cramped, narrow concrete cell, and subjected to an invasive body search. Her requests for a lawyer and medical treatment were denied. The supervisor told her she would be held indefinitely.
When she told him that she is an American citizen, he replied: “The Fourth Amendment doesn’t apply here. We can hold you for as long as we want to.”
She was released after four hours.
Journalist Seth Harp wrote a similarly disturbing story about what happened when he was singled out for a “secondary screening” at the Austin Airport in Texas. CBP agents pried him for information about what he was writing, his sources, his reporting as a war correspondent, and his discussions with his editors.
“I did remember reading a report in February about CBP targeting journalists, activists, and lawyers for scrutiny at ports of entry south of California, but I had never had a problem before, not in a lifetime of crossing the Texas-Mexico border scores of times on foot, by car, by plane, in a canoe, even swimming,” writes Harp. “This was the first time CBP had ever pulled me aside…”
I was told that I was not under arrest or suspected of any crime, and my citizenship was not in doubt, but if I didn’t answer the question asked by the ‘incident officer,’ I wouldn’t be allowed into the United States—which I later learned was an empty threat, as CBP cannot exclude American citizens from entering the country….
Cooperation didn’t earn me any leniency. Next up was a thorough search of my suitcase, down to unscrewing the tops of my toiletries. That much I expected. But then a third officer, whose name was Villarreal, carefully read every page of my 2019 journal, including copious notes to self on work, relationships, friends, family, and all sorts of private reflections I had happened to write down. I told him, “Sir, I know there’s nothing I can do to stop you, but I want to tell you, as one human being to another, that you’re invading my privacy right now, and I don’t appreciate it.” Villarreal acknowledged the statement and went back to reading.
That was just the beginning. The real abuse of power was a warrantless search of my phone and laptop. This is the part that affects everyone, not just reporters and people who keep journals.
Harp told the officers he “had nothing to hide,” but that he wanted to “call an attorney for further advice.”
The agent told him he wouldn’t be allowed to do that because he “wasn’t under arrest.”
“When I actually tried to call a lawyer friend of mine in Austin, Pomeroy stopped me. They held onto my phone from then out.”
When asked for comment on Harp’s story, CBP told TAC that the agency examines the electronic devices of less than one-hundredth of one percent of travelers arriving to the United States.
“All travelers arriving to the U.S. are subject to CBP inspection,” CBP said in a statement. “This inspection may include electronic devices such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players and any other electronic or digital devices…. All persons, baggage, and merchandise arriving in, or departing from, the United States are subject to inspection, search and detention…”
But American citizens cannot be unreasonably detained or prevented from entering the United States, asserts attorney Cope, whose organization the Electronic Frontier Foundation, publishes a guide for travelers.
“If you’re not American or a lawful permanent resident, you can be denied entry for almost any reason. So if you don’t comply with a request to unlock your device, you risk not being able to come into the U.S. But it is totally different for American citizens and green card holders. They have an automatic right to come into the country,” said Cope.
In the past, border searches were “about searching the physical goods that people bring into the U.S., to make sure that they were not bringing in contraband for instance,” said Bhandari. “But now these searches have expanded to read the entire contexts of people’s digital lives, simply because they cross the border.”
According to legal precedent, customs agents are not supposed to read the contents of mail, even if they do open a package because it appears to contain contraband.
“Think about that, and compare it to device searches: imagine if you lived in a world where all international mail was opened and read by the government before you received it,” said Bhandari.
That would seem absurd, but that is essentially what’s happening here.
“This so obviously poses a problem; why would we think that it would be Constitutional for the government to access and read everything we write and say with our devices?” she asked.
In any other law enforcement context, officers would have to prove probable cause—but “at the border, there’s no such protection,” said Bhandari. “This expansive search creates an end run around the legal protections afforded us within our system.”
The sorts of laws that could catch a person in this dragnet include “hundreds” of laws, according to the government: from tax enforcement, to bankruptcy, to consumer protection, to environmental laws, and things that typically have nothing to do with customs or border issues.
In their over 500-word statement to TAC, CBP admitted as much.
Searches of electronic devices at the border … can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark and export control violations. CBP electronic media searches have resulted in arrests for child pornography, evidence helpful in combating terrorist activity, violations of export controls, convictions for intellectual property rights violations, and visa fraud discoveries.
Needless to say, CBP has not traditionally been tasked with investigating intellectual property rights violations, or copyright or commercial crimes.
In addition, the government has asserted that they may conduct “warrantless or suspicionless device searches” for “intelligence gathering or advancing preexisting investigations… from other government agencies,” according to the lawsuit.
After the data is collected, the government does not provide any information on “where the information goes, beyond saying they could share what they found with other federal agencies, state and local law enforcement, and even foreign governments,” she said. “It could be stored indefinitely.”
A motion for summary judgment on the EFF and ACLU case will be heard on July 19.
In response to a request for comment on the suit, CBP said “as a matter of policy” they do “not comment on pending or current litigation.”
The problem of unreasonable searches and detentions at the border could be resolved outside the court room. Bipartisan legislation introduced by Senators Ron Wyden (D-OR) and Rand Paul (R-KY.) would require law enforcement to have probable cause and a warrant before they search a device.
Their bill also prohibits officials from delaying or denying entry to the United States if a person declines to hand over passwords, PINs, and social media account information.
“Our bill will put an end to these intrusive government searches and uphold the fundamental protections of the Fourth Amendment,” Paul said in a statement.
“Americans should not be forced to surrender their rights or privacy at the border”
Barbara Boland is The American Conservative’s Foreign Policy and National Security Reporter. Follow her on Twitter @BBatDC