A lawsuit against warrantless searches at US border points has revealed that the Department of Homeland Security (DHS) has given its border patrol agents free rein to conduct warrantless, suspicion-less device searches for pretty much any reason at all.
The lawsuit was filed against DHS in 2017 by the Electronic Frontier Foundation (EFF) and the ACLU on behalf of 11 people. Those people include a military veteran, journalists, students, an artist, a NASA engineer, and a business owner, all of whom experienced forced, warrantless searches of their cellphones and laptops at the border.
On Tuesday, the ACLU and the EFF filed evidence in court showing policies and practices of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) that authorize officers to conduct warrantless, suspicion-less device searches for purposes that have nothing to do with immigration or customs laws, including:
…enforcing bankruptcy, environmental, and consumer protection laws, and for intelligence gathering or to advance pre-existing investigations.
The documents show that border agents are also allowed to consider requests from other government agencies to search devices, the EFF said.
Agents are empowered to search electronic devices even when the actual target isn’t the traveler standing in front of them – such as when the traveler is a journalist or scholar with foreign sources who are of interest to the US government, or when the traveler is the business partner of someone under investigation.
Both agencies also allow agents to retain the data they copy off devices and share it with other government entities, including state, local, and foreign law enforcement agencies. They’re none too careful with that data, either, as we learned in December when the Office of Inspector General (OIG) filed a report with DHS about border agents copying travelers’ data and leaving it kicking around on USB drives that they don’t always erase and sometimes misplace.
The searched
The EFF named the 11 people listed in the lawsuit, some of whom we’ve written about.
They include natural-born US citizen Sidd Bikkannavar. He’s a NASA engineer who was detained by US Customs and Border Protection (CBP) in 2017 and pressured to hand over his NASA-issued phone and the PIN to get into it.
This, in spite of the fact that the work-issued phone could have contained sensitive information relating to his employment at the space agency, and in spite of the fact that NASA employees are obligated to protect all work-related information. A CBP officer returned his phone after a half hour, saying that it had been searched using “algorithms”.
Also among the plaintiffs is artist Aaron Gach, another natural-born US citizen who was forced to unlock his phone after returning from putting on a gallery installation in Brussels. That installation focused on “mass incarceration, government control, and political dissent”.
Another plaintiff is Diane Maye, a college professor and retired US Air Force officer who was detained for two hours at Miami International Airport when coming home from a vacation in Europe in June.
Akram Shibly is also a plaintiff. The independent filmmaker, who lives in upstate New York, was crossing the US-Canada border when a CBP officer ordered him to hand over his phone.
Just three days earlier, CBP had searched his phone, when he was returning from a work trip in Toronto, so Shibly declined. He’s alleging that officers then physically restrained him, with one choking him and another holding his legs, and took his phone from his pocket. He alleges that he suffered “great pain and fear of death”. The officers kept the phone, which was already unlocked from the search of three days prior, for over an hour before giving it back.
How is this legal?
Border crossings are commonly referred to as “constitution-free” zones where protections against unreasonable search are somehow suspended. That’s not strictly true, as the ACLU has noted, but the search rules certainly are different. The rights group has been trying to legally compel border agents to comport with the Fourth Amendment, which prohibits unreasonable searches and seizures.
The ACLU says that Fourth Amendment protection of privacy rights of a cellphone were made clear in Riley v. California, a landmark 2014 case in which the Supreme Court unanimously held that the warrantless search and seizure of digital contents of a cellphone during an arrest is unconstitutional.
The Supreme Court has also ruled against warrantless phone search in cases such as US vs. Jones.
The EFF and ACLU have moved for a summary judgment – i.e., a request for the court to rule that the other party has no case, because there are no facts at issue, and therefore the case shouldn’t go before a jury at all – to block warrantless searches of electronic devices at US ports of entry.
Riggarob
Just as a background note, I’m a disabled combat Marine, natural born citizen of the USA. The United States government sounds more and more like all the countries it has said are so horrible over the years , i. e. China, Russia, well name any one of the countries that the US have said is just horrible on civil rights. Our government is no different than any of the rest, and the problem is you can’t sue the individual for any indiscretions. I don’t think this is why I fought for the United States. This whole search without a warrant is very distressing, to say the very least. 😣
Paul Ducklin
Bear in mind that this is something of a grey area where the US is little different from other Western democracies such as the UK: these “warrantless” searches are at the frontier rather than truly inside the country – I’ve entered the US many times and I was never under the impression that I was covered by the Fourth Amendment before clearing customs. You’re sort of in the country but not actually inside it yet… a customs or border official can ask you to open your suitcase and that’s pretty much that. It’s as though there’s an implicit search warrant that you subject yourself to if you seek entry.
Brian T. Nakamoto
If the US government can disregard US law when it’s interacting with its citizens outside of US territory then that opens up a lot of other US legal issues. I suppose the Feds could label us whatever we’re calling “enemy combatants” these days, or POTUS could test his authority. Hopefully, there would be due process in such a scenario that’s way more extreme than these unconstitutional search and seizures.
Paul Ducklin
So US citizens who choose to leave US jurisdiction and then re-enter it should be exempt from border controls and should be allowed to bring back whatever they want into the country, unchecked… but non-citizens shouldn’t? I imagine there would be might be constitutional complexities in having things work that way round, too.
If the Fourth Amendment can be applied selectively at the frontier depending on citizenship, then why not inside the country, too? But my understanding is that the Constitution, the Bill of Rights and all the other amendments apply the same to everyone in the US (presumably with some exceptions for people in the country unlawfully)…
…otherwise, surely even legal aliens would effectively have no right to silence, and could be stopped and searched anytime, anywhere. But they do and they aren’t – IIRC, anyway.
Brian T. Nakamoto
No, to answer your first question. :) To clarify, my primary concern is that US Customs Border Patrol is not following their own guidance to the public (see CBP quote below), particularly with respect to the US citizens who are suing their government because their Fourth Amendment rights were violated (IMHO) by CBP at the border. If the government can’t figure out how to consistently and correctly apply the law to its own citizens in the (overly broad) border zone, then it’s no wonder that it seems like some CBP agents act as if non-citizen persons don’t have any constitutional rights either.
“Border Patrol checkpoints do not give Border Patrol Agents carte blanche to automatically search persons and their vehicles, other than in the manner described above [see source]. In order to conduct a legal search under the Fourth Amendment, the agents must develop particularly probable cause to conduct a lawful search. Probable cause can be developed from agent observations, records checks, non-intrusive canine sniffs and other established means.”
Dissin
There is no 4th Amendment right to privacy at the border or the “functional equivalent of the border” your argument implies a “criminal law situation” absent the border. The example being a plane arrives from Paris France to Kansas City. There is no “physical” border of the US in Kansas City. So everyone and anything on that plane are subject to search based upon the “functional equivalent” of the US border. Not a criminal issue. The same for “Border Patrol Checkpoints”
they have been given “Border Search authority at the functional equivalent, the application post search is an administrative argument and I agree it should be consistent throughout.
Brian T. Nakamoto
My argument is that there are indeed Fourth Amendment rights at the border (which includes the “border” with France in Kansas City). CBP acknowledges that there are Fourth Amendment considerations to conduct a lawful search; see the CBP quote in my prior comment from the CBP website, “Legal authority for the Border Patrol” (CBP, 2018).
Here’s a quote from The Yale Law Journal, “Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches” (Donohue, 2019): “While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, bypassing the warrant requirement altogether.” I recommend reading The Yale Law Journal essay by a Georgetown Law professor.
Dissin
Correct, this is a Border issue “exclusively”. Returning to the United States there are two issues that are placed upon everyone. “Immigration = Admission to the US” “Customs = ability to enter goods and personal property. The laptop or phone even by a US Citizen is open to search by almost any country you travel to and then return to the US.
Sarah
Concerning your comment, “these “warrantless” searches are at the frontier rather than truly inside the country.” Part of the problem is that “federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. ‘external boundary.'” This means that almost two thirds of the population of the United States is covered by this 100 mile swath and it is hardly just the frontier. See the ACLU’s article on “The Constitution in the 100-Mile Border Zone”. https://www.aclu.org/other/constitution-100-mile-border-zone
On a separate note, I really appreciate the security reporting at Naked Security. I often share articles with my co-workers. Keep up the good work!
Paul Ducklin
Thanks for your kind words. We appreciate the feedback (and all those in our community who make it more interesting and more valuable through their comments).
Dissin
EVERYONE including US Citizens, are subject to a “border search” upon entering the US. You were also subject to this while you were in the Marines, were you not? although you were sent through a “military version of Customs” which even sometimes provided military personnel with a “second chance” to dump items before making your “declaration” that is something regular civilian citizens didn’t get.
The Pope, foreign heads of state and Special Agents of any government agency returning from foreign are subject to the same “Border Search.” The computer or phone is nothing more than convenient storage of what use to be on paper. Just like your body and your luggage, they are subject to a “border Search” NOT a criminal related search. The SCOTUS has held this to be legal numerous times. The “Border” search cannot be conducted in “absence” of a “border situation” thus a “Customs Officer” cannot just pull people over and search them once the “border situation” is no longer present.
By crossing the border or the “functional equivalent” of the boder everything and everyone is subject to search.
Please tell me how a warrant could be obtained for every person entering the US? or even 10% of them? That is why “ONLY CUSTOMS” officers or those with designated Customs search authority (such as Border Patrol) can conduct these types of searches “AT THE BORDER”.
Tron
I do know that you cannot be refused entry into to the US (if you are a citizen) if you refuse to open your phone/device. The device would be confiscated, but CBP cannot refuse your entry if you don’t unlock the device. This would be especially important when carrying classified information where it would be illegal for you to divulge the info, and illegal for the CBP officer to read the information. If the device is encrypted (which, of course, it should be!), the CBP can have at it trying to decrypt it!
Paul Ducklin
Is there some statutory (or even advisory) limit on how long they can keep it? Or do you have to agree to letting them have a forensic copy before it’s returned? If they decide you can’t have it back is there any sort of statutory compensation process (e.g. pay market rate for the device)?
Brian T. Nakamoto
See CBP Directive No. 3340-049A, “Border Search of Electronic Devices” (CBP, 2018). Section 5.4.1 states: “Unless extenuating circumstances exist, the detention of devices ordinarily should not exceed five (5) days.” The CBP directive goes on to specify approvals required for extending the detention beyond five days, exceeding fifteen days, and re-approvals for each additional seven day increment of detention.
Paul Ducklin
Do extenuating circumstances include “being unable to take a forensic copy, albeit encrypted”?
Brian T. Nakamoto
It seems so, for example, Section 5.4.2.1 states: “Officers may sometimes need technical assistance to render a device and its contents in a condition that allows for inspection. For example, Officers may encounter a device or information that is not readily accessible due to encryption or password protection. … In such situations, Officers may convey electronic devices or copies of information contained therein to seek technical assistance.”
Section 5.4.3.2, “Time for Assistance”, states: “…responses should be received within fifteen (15) days.” Then a seven day increment extension procedure similar to the one for device detention is required. Thus, it seems like the inability to make a forensic copy is enough of a circumstance to detain a device.
Section 5.4.3.4 gets interesting: “Except as noted in section 5.5.1 below or elsewhere in this Directive, if after reviewing information, probable cause to seize the device or the information from the device does not exist, CBP will retain no copies of the information.”
Section 5.5.1.1 states (Section 5.5.1 is just a title): “Officers may seize and retain an electronic device, or copies of information from the device, when, based on a review of the electronic device encountered or on other facts and circumstances, they determine there is probable cause to believe that the device, or copy of the contents from the device, contains evidence of a violation of law that CBP is authorized to enforce or administer.”
P.S. The directive is on the CBP website. :) I’d link to it if this comments system didn’t remove links.
P.P.S. Here’s the full text of Amendment IV (US National Archives, 2018):
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Paul Ducklin
I always thought that the Bill of Rights was very much about people *already in one of the United States* rather than those seeking to enter (or re-enter) it.
In other words the Rights were more of a protection for existing Americans to resist change (notably the erosion of states’ rights) than carte blanche for “outsiders” (British invaders, for example£, to plot and import change.
I don’t imagine the founding fathers imagined that the Bill of Rights would inevitably apply to those entering the country from outside.
Dissin
“Refusal of entry” of any American Citizen is separate from a Border Search. That is an Immigration issue, not a Customs Issue. Where would anyone carry” classified” information out of the country and why and WHO? If one has “classified information” on his phone or laptop he/she would have a reason and the agency that that person worked for would have no problem demanding that the computer/phone be viewed ANYWHERE, not just the border It would NOT be on or better not be on a “Personal” device. I guess the caveat here is “define classified”? Think Hillary Clinton Here.