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US border agents assert ‘broad unconstitutional’ power to search citizens’ devices

U.S. border officials are asserting “broad, unconstitutional authority” to conduct warrantless searches of travelers’ phones, tablets and laptops, according to a new court filing.

The findings, obtained from depositions and discovery filed in court by the American Civil Liberties Union on Tuesday, claim U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are overreaching their powers to search traveler devices at the border without seeking a court-approved warrant. Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said the agencies were “using the pretext of the border to make an end run around” the constitution. “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,” said Bhandari, citing the protection of free speech and warrantless searches. “We’re asking the court to stop these unlawful searches and require the government to get a warrant,” she said. The filing is the latest from a lawsuit filed by the ACLU alongside the Electronic Frontier Foundation by ten U.S. citizens and one permanent resident — including a NASA engineer and a journalist — whose devices were searched at the border without a warrant. In some cases, their devices were confiscated for months.
“The border is not a lawless place, ICE and CBP are not exempt from the constitution.”
Esha Bhandari, ACLU
The plaintiffs are asking the court to rule that the government must first have a warrant to search their devices, based off reasonable suspicion that a crime may have been committed. The ACLU wants the court to rule without trial. Border searches are on the rise. CBP searched more than 30,000 travelers’ devices last year, close to four-times the number from three years prior. But Homeland Security, which houses both CBP and ICE, has long claimed authority to search anyone arriving at the U.S. under the border search exception, a doctrine said to stretch 100 miles inland, encompassing dozens of America’s largest cities. Several appeals courts have sparred over the constitutionality of the exception — with the decision likely to end up at the Supreme Court. According to its latest filing, the ACLU said border officials are searching devices without a warrant for a broad range of reasons, including enforcing tax, bankruptcy, environmental, and consumer protection laws. The ACLU also said that ICE agents have searched the devices of a U.S. citizen if they are seeking information about a suspected undocumented person, and also claim the right to search the devices of journalists who are “known to have had contact with a suspected terrorist, where there is no suspicion that the reporter engaged in wrongdoing,” and any “foreign sources who are of interest to the U.S. government.” The group also said devices are being searched for either intelligence gathering or advancing pre-existing investigations, and CBP staff will also consider requests from other law enforcement agencies — including foreign agencies — when carrying out searches. Any data collected by CBP or ICE without a warrant can be shared with federal, state, local and foreign law enforcement, the ACLU said. The filing also said CBP officers “may have accessed cloud-based content during searches of electronic devices,” despite a directive in April 2017 barring officers from accessing cloud-based data from a device. Adam Schwartz, a senior staff attorney at the Electronic Frontier Foundation, said the government’s warrantless searches are “unconstitutionally broad.” “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. When reached, CBP spokesperson Stephanie Malin declined to comment. ICE did not comment.

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