A federal appeals court heard oral arguments on January 5 in a case in which 10 U.S. citizens and a permanent resident who regularly travels sued the Department of Homeland Security. They claimed their Fourth Amendment rights against unreasonable search and seizure were violated when their devices were searched upon reentering the country. “I believe the ACLU will be successful using the Fourth Amendment argument,” Chris Hauk, consumer privacy champion at Pixel Privacy, said in an email interview. “They should also be able to successfully argue on the basis of racial discrimination, as the group of Americans the suit was brought on behalf of are all Muslims or people of color.”
Reasonable Suspicion or Bust
The suit dates from 2017 when the plaintiffs challenged the government’s practice of searching travelers’ electronic equipment without a warrant and usually without any suspicion that the traveler was guilty of wrongdoing. A federal district court judge ruled last year that some electronic device searches at U.S. ports of entry violate the Fourth Amendment. The court said that border agents must have reasonable suspicion that a device contains digital contraband before searching or seizing it. “The Fourth Amendment, which protects people from unreasonable searches and seizures, is premised on the common recognition that each individual is entitled to the right of privacy, or, as Samuel Warren and Louis Brandeis defined it, the ‘right to be left alone,’” attorney Todd Kartchner said in an email interview. “The process for obtaining a warrant is an exacting one, requiring a judge or magistrate to find probable cause based on sworn testimony or an affidavit,” Kartchner continued. “This ensures the government can only intrude into a person’s private space after demonstrating a crime has been committed, and the person being searched was involved.” While law enforcement searches usually require a warrant, that’s not the case at the border, Kartchner said. Lawyers from the American Civil Liberties Union and the Electronic Frontier Foundation have argued that last year’s ruling should be extended to require search warrants.
Get a Warrant or Go Home, Rights Groups Say
A judge hearing the arguments asked if the reasonable suspicion standard was enough to protect travelers, Bloomberg reported. “It seems to me that is in itself a protection against the kind of general rummaging that you seem to fear,” Judge Bruce M. Selya said. Esha Bhandari, an attorney with the ACLU’s Speech, Privacy, and Technology Project, told the judge that reasonable suspicion “would go some way toward” addressing the privacy issues. Observers told Lifewire that they agreed with the arguments by the civil liberties groups. “Requiring warrants is the first of many steps necessary to stop what appear to be the excessive fishing expeditions currently codified into DHS, CBP, and ICE standard operating procedures,” Jason Meller, co-founder and CEO of security company Kolide, said in an email interview. “Cell phones and laptops aren’t the commodity electronics they were two decades ago,” added Meller. “In 2021, they are portals into the souls of their owners. The electronics in question often contain privileged communications, sensitive photographs, protected health data, and other extremely personal information.” Government agencies reportedly are increasing the number of searches of devices at U.S. borders. There were over 30,500 searches at borders in fiscal 2017, up from the 8,500 searches two years earlier. “While that means a tiny fraction of the millions of people that pass through our borders each year are having their electronic devices searched, it is still an issue,” Hauk said. “If even one device is being searched wrongfully, it is a problem.” Travelers should not have to fear for the privacy of their digital data at the border. At the very least, government agencies should have to have a search warrant to check your smartphone or tablet.
