Searches performed by the U.S. government through travelers' cellphones and laptops at airports and border crossings have quadruped since 2015, and according to a new federal lawsuit, the reasoning behind the searches have gone well beyond a need for customs and immigration enforcement.
The lawsuit filed by the Electronic Frontier Foundation and the American Civil Liberties Union on Tuesday claims that the U.S. government has been searching electronics beyond their scope and without a warrant which is unconstitutional.
In 2018, there were 33,295 laptop and cellphone searches by the government at borders and airports. The lawsuit claims these technology searches of certain individuals aren't for customs and immigration enforcement, but that the CBP and ICE are taking requests from other agencies to search electronic devices to gather information on tax, bankruptcy, environmental and consumer protection investigations. Furthermore, they allege that Customs and Border Protection has even targeted these individuals' friends, relatives and business associates' laptops and cellphones for searches.
"The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad," said Adam Schwartz, senior staff attorney for the EFF.
"ICE and CBP policies and practices allow unfettered, warrantless searches of travelers' digital devices and empower officers to dodge the Fourth Amendment when rifling through highly personal information contained on laptops and phones," he said.
The lawsuit was filed by the ACLU and EFF on behalf of 10 American citizens and one permanent resident, which include seven journalists, a NASA engineer and a former Air Force captain. They say these searches violated their clients' constitutional rights and all information obtained in the searches should be erased from databases because ICE and CBP share that information with other agencies without their permission. Now that their electronic devices have been searched by CBP or ICE, the claimants run the risk of being flagged for additional security checks.
Ultimately, the ACLU and EFF are asking the court to require ICE and CBP to have warrants based on probable cause for searching laptops and cellphones in airports and border crossings.
The suit was first filed in 2017 and while the government wanted it dismissed, U.S. District Judge Denise Casper rejected their request and the ACLU and EFF have been gathering information to support their claims since. On April 30, 2019, they asked the judge to rule in their favor without a trial.
"Travelers' devices contain an extraordinary amount of highly personal information that the government can easily search, retain, and share," they argued.
"This new evidence reveals that the government agencies are using the pretext of the border to make an end run around the First and Fourth Amendments," said ACLU attorney Esha Bhandari. "The border is not a lawless place. ICE and CBP are not exempt from the Constitution and the information on our electronic devices is not devoid of Fourth Amendment protections. We are asking the court to stop these unlawful searches and require the government to get a warrant."
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