The Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) have filed a lawsuit on behalf of eleven people against the federal government to end warrantless searches of electronics at the border by the Department of Homeland Security (DHS). From The New York Times:

The lawsuit, filed Wednesday by the American Civil Liberties Union and the Electronic Frontier Foundation, claims the plaintiffs’ First and Fourth Amendment rights were violated when United States agents searched, and in some cases confiscated, their devices without a warrant. The government has said those searches happen to fewer than one-hundredth of one percent of international travelers, and that they are authorized by the same laws that allow border agents to look through suitcases without a judge’s approval.

But privacy activists say the laws, which were crafted with luggage in mind, shouldn’t apply to digital devices that contain vast amounts of personal data related to the device owners and others they have contacted.

The Knight First Amendment Institute at Columbia University tried to find out how the government uses “its authority” with electronics by filing Freedom of Information Act requests, only has “heavily redacted reports.” The New York Times continued:

Jameel Jaffer, the institute’s executive director, said that the searches could have a chilling effect on journalists, lawyers and doctors, who often travel with their devices and have a professional obligation to shield the identities of their sources, clients and patients and the information they provide.

“It’s hard to see how the kind of unfettered authority that border agents have been invested with can be reconciled with the limits the constitution places on government power,” Mr. Jaffer said.

The Plaintiffs

The lawsuit states that these searches violate the plaintiffs’ First and Fourth Amendments while asking “the court to enjoin border officials from confiscating or searching anybody’s tech devices absent a warrant based on probable cause, and to make them expunge any information they’ve collected from the plaintiffs’ devices.”

EFF wrote that the plaintiffs of the lawsuit “include a military veteran, journalists, students, an artist, a NASA engineer, and a business owner” and many “are Muslims or people of color.” EFF continued:

All were reentering the country from business or personal travel when border officers searched their devices. None were subsequently accused of any wrongdoing. Officers also confiscated and kept the devices of several plaintiffs for weeks or months—DHS has held one plaintiff’s device since January. EFF, ACLU, and the ACLU of Massachusetts are representing the 11 travelers.

EFF also offered comments and descriptions of the searches:

Plaintiff Diane Maye, a college professor and former U.S. Air Force officer, was detained for two hours at Miami International Airport when coming home from a vacation in Europe in June. “I felt humiliated and violated. I worried that border officers would read my email messages and texts, and look at my photos,” she said. “This was my life, and a border officer held it in the palm of his hand. I joined this lawsuit because I strongly believe the government shouldn’t have the unfettered power to invade your privacy.”

Another plaintiff was subjected to violence. Akram Shibly, an independent filmmaker who lives in upstate New York, was crossing the U.S.-Canada border after a social outing in the Toronto area in January when a CBP officer ordered him to hand over his phone. CBP had just searched his phone three days earlier when he was returning from a work trip in Toronto, so Shibly declined. Officers then physically restrained him, with one choking him and another holding his legs, and took his phone from his pocket. They kept the phone, which was already unlocked, for over an hour before giving it back.

“I joined this lawsuit so other people don’t have to have to go through what happened to me,” Shibly said. “Border agents should not be able to coerce people into providing access to their phones, physically or otherwise.”

Border patrol seized NASA’s Jet Propulsion Laboratory’s engineer Sidd Bikkannavar’s phone and demanded the password. Bikkannavar received his phone 30 minutes later and the officer claimed the agents had to search it using “algorithms.”

The Defense

The New York Times reported that the searches began under President George Bush’s administration, but grew under President Barack Obama:

According to the most recent data available, there were nearly 15,000 searches from October 2016 to March 2017, compared with 8,383 in the same period a year before.

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David Lapan, a spokesman for the Department of Homeland Security, said he could not comment on pending litigation but that “we absolutely believe the searches are lawful.”

Joseph B. Maher, the acting general counsel of DHS, penned an op-ed in USA Today to defend the searches:

These electronic media searches have produced information used to combat terrorism, violations of export controls, and convictions for child pornography, intellectual property rights violations and visa fraud. This authority is critical to our mission, and Customs exercises it judiciously. Electronic searches affect less than one-hundredth of 1% of all arriving travelers.

The Supreme Court has explained that the “government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” Still, Customs has proactively developed a disciplined policy with proper oversight for searches of electronic devices.

Maher writes that courts have agreed with the practice, but he conveniently left out a 2014 Supreme Court decision:

The Supreme Court decision making it harder for the police to search cellphones without a warrant could change procedures around the country, police officials and legal experts said Wednesday.

In an opinion hailed as a major advance for personal privacy in the digital age, Chief Justice John G. Roberts Jr. wrote that cellphones are tiny computers that can be said to contain “the privacies of life.” And so the opinion concluded that the message for police in most cases is simple: “get a warrant.”