Alert! Court Actually Claws Back Post-9/11 Search Creep
New ruling puts the brakes on practice of seizing travelers' laptops and cell phones.
At last a victory for citizens. For nearly 20 years, the federal government has used and abused the memory of the 9/11 attacks to expand its law enforcement authorities at the nation’s airports, even if that has meant broaching one of our most sacrosanct constitutional freedoms: the right against illegal search and seizure, otherwise known as the 4th Amendment.
On Tuesday, a federal court in Boston ruled that the Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) can no longer detain Americans coming back over the border to search their laptops, cell phones and other electronic devices, without cause. One would think this is a no-brainer, but the number of these incidents has actually escalated to over 33,000 last year—nearly four times as many as the previous three years, according to the Electronic Frontier Foundation:
The ruling came in a lawsuit, Alasaad v. McAleenan, 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 suspicion at U.S. ports of entry.
International travelers returning to the United States have reported numerous cases of abusive searches in recent months. While searching through the phone of Zainab Merchant, a plaintiff in the Alasaad case, a border agent knowingly rifled through privileged attorney-client communications. An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.
According to EFF, border officers “must now demonstrate individualized suspicion of illegal contraband before they can search a traveler’s device.”
TAC’s Barbara Boland reported on this over the summer. The number of electronic devices accessed in 2018 was six times the number in 2012, suggesting that this is not only a post-9/11 issue, but that somewhere along the line the Trump Administration signaled to these agencies, which are all under the umbrella of the Department of Homeland Security, that it was gloves-off at the border—even for American citizens. Lest you think this is just an extension of the president’s tough illegal immigration policies, be warned, many of the folks targeted were typical international visitors and U.S. citizens—think students, journalists, academics, doctors—and not travelers to this country for the first time. And they were treated like they were coming into the Third World. From Boland:
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.
“The border has become a rights-free zone for Americans who have to travel,” Senator Ron Wyden (D-Oregon) said in a statement given to Boland at the time. “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.”
Let’s hope that Tuesday’s order fixes that—though it might take a Supreme Court ruling to put an end to it for good.