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Lawsuit Claims Warrantless Searches of Electronics at Border are Illegal

Lawsuit Claims Warrantless Searches of Electronics at Border are Illegal

“I felt humiliated and violated.”

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.

Continue reading the main story
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.”


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So when I fly the government has the right to stick their hands in my pants but can’t look at your cell phone….,I want a warrant next time before I’m groped!

    DaveGinOly in reply to caseoftheblues. | September 15, 2017 at 6:06 pm

    When you fly commercially, you have entered into an agreement with a commercial carrier that you will abide by the processes and procedures required of passengers by the carrier. This includes subjecting oneself to the security procedures of the TSA. (If this agreement is not explicitly spelled out in the small print that comes with your ticket, it’s certainly implied.)

    A US citizen crossing a border to get back into the country he has a right to return to is a completely different situation.

Sounds like they have a point.

What are they watching for at the border? Disease vectors, dangerous weapons, narcotics, persons and animals which are not supposed to be here, smuggling (that’s solely financial, not a matter of safety).

But not information—there are few restriction on information crossing US borders, and even the few which exist (mainly anything which can be interpreted as child porno) are a bit contentious.

Since phones and computers don’t carry diseases, dangerous weapons, narcotics, people or animals, or large smuggled goods, there’s little justification for searches. Maybe opening cases to look for small contraband like, say, diamonds could be justified.

    DaveGinOly in reply to tom swift. | September 15, 2017 at 6:16 pm

    In a technological environment in which the individual can upload all his data to remote storage, cross the border, then download the data back into a local device, anyone intending actual harm with said data can easily evade the Border Patrol. This raises a question: Does the Border Patrol/DHS have the authority to demand access to a traveler’s remote storage?

      daniel_ream in reply to DaveGinOly. | September 16, 2017 at 2:04 am

      I’ve worked for companies where the standard procedure for crossing the border on a business trip was to image the hard drive to company network storage, pull the drive, and cross the border without it. Upon arrival, you requested a replacement HD from the local office and downloaded the image on to your new HD. The rationale was that with nothing to search, you wouldn’t get stuck at customs and miss your flight.

“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.”

SO, you once accidentally caught something while on a fishing expedition, therefore all fishing expeditions are allowed? I don’t remember there being a “stopped clock” clause in the Constitution. Can someone please point it out to me?

Freedom vs security argument again.

Peter King is a dip-shit. Full stop.

If the government had a warrant to search your home for an elephant, its agents would search your computer, cell phone, dresser drawers, and refrigerator. It would then excuse its actions as authorized by the warrant to search for the elephant.

Their complaint is valid, but their case is not. It’s well-established law that the fourth amendment does not apply at border crossings. Only the Supreme Court can change that. The government is simply taking advantage of this to search for things they never could do anywhere else.

“Huh, my password doesn’t work. Oh, well. I’ll just have to contact my IT support when I get to my destination to see if it can be remotely reset.”

I went to law school 40 years ago but I remember that back then the Constitution had limited application at the border. The 4th Amendment did not apply.

    Milhouse in reply to TeeJaw. | September 16, 2017 at 9:20 pm

    Well, technically it applies, but remember that it only forbids unreasonable searches. In the eighteenth century, just as now, border searches were considered reasonable, and are thus permitted with neither warrant nor probable cause. The mere fact that you’re crossing a border gives the government the legal right to search you for anything it likes.

I ran an international adoption agency for 20 years. We always told our clients that their electronics were subject to search when they entered any country, including the US on their return from their adoption trip. Many flatly didn’t believe us. Including some who got a rude surprise at the border. Whenever I traveled I always had a business only laptop that I took with me. None of my personal stuff on it. I didn’t like the idea of Feds going through family pictures, or how I really felt about certain relatives! I would also buy a disposable cell phone in the other country and cut up the sim card before I threw it away. But I am a privacy buff who generally refuses to give out my social security number unless legally required to do so. So it may just be me.

A point that has not yet been discussed: there may be a difference between a search of a US citizen at the border trying to return home, and a foreign national seeking to enter the country.

Could we agree that the former has certain rights at the border that the latter does not have?

Search of electronics of US citizen –> warrant first

Search of electronics of foreign national –> go for it

Search of luggage of either –> established law and procedure applies.

Customs has the authority to search any person, including any storage items [luggage, bags, etc] in his possession for contraband. Contraband is anything which can not lawfully be possessed in this country. So, it is probably legal for Customs to inspect your electronic storage media, including cellular telephones, tablets and laptops for contraband. What they can not do is to inspect the contents of or copy items which are obviously not contraband. This would include emails and documents which do not have any graphic attachments, common programs and apps, address books and assorted lists and equipment usage records, as none of these would be considered contraband.

It is likely that the courts will limit the extent of the inspection of the contents of electronic devices. But, I do not see it requiring any kind of warrant for Customs to ispect such items which are entering the country.

4th armored div | September 16, 2017 at 5:19 pm

in an age where a phone can be equipped with Semtex or other blowuppable stuff examining phones is no different than a body search.
i no longer travel, but can’t understand the big Hoo-ha about this.
for business people and frequent travelers there is a simple solution have a cheap throwaway phone while traveling and your good phone at home or office.

i think that keeping an eye on objects that may be used to detonate is a safer option and though highly inconvenient.
Timeline of airliner bombing attacks

Commercial passenger airliners and cargo aircraft have been the subject of plots or attacks by bombs and fire since the near the start of air travel. Many early bombings were suicides or schemes for insurance money, but in the latter part of the 20th century, assassination and political and religious militant terrorism became the dominant motive for attacking large jets. One list describes 86 cases related to airliner bombings, 53 of them resulting in deaths.[1]

This is a chronological list of airliner bombing attacks. All entries on the list should have their own article. Explosions deemed to have not resulted from a bomb should not be included on this list. Bombings of small light aircraft and air taxis and failed bombing plots may not be notable for inclusion. Commercial airliners contracted to military use may be included on this list, but bombings of military transport aircraft should not.
Date Flight or incident Description Casualties 10 October 1933 United Airlines Chesterton crash A Boeing 247 was destroyed by a bomb, with nitroglycerin as the probable explosive agent. A Chicago gangland murder was suspected, but the case remains unsolved.[2] It is thought to be the first proven act of air sabotage in commercial aviation. 7 9 September 1949 Canadian Pacific Air Lines In-flight bombing Joseph-Albert Guay packed a bomb made of dynamite in the baggage carried by his wife. The explosion occurred after take off, leading to the death of all 19 passengers and 4 crew on the Douglas DC-3. Guay was tried and sentenced to death by hanging on 12 January 1951. 23 11 April 1955 Kashmir Princess An Air India Lockheed L-749A Constellation carrying delegates to the Bandung Conference was bombed in an unsuccessful attempt to assassinate Chinese Premier Zhou Enlai. 16 1 November 1955 United Airlines Flight 629 Jack Gilbert Graham packed a bomb containing dynamite in a suitcase carried by his mother. The explosion and crash killed all 39 passengers and 5 crew members. 44 16 November 1959 National Airlines Flight 967 A Douglas DC-7B aircraft disappeared from radar over the Gulf of Mexico; 10 bodies and scattered debris were recovered but the main wreckage was never found. There has been speculation that the plane was brought down by a bomb; one theory is that a convicted criminal tricked another man into boarding in his place with luggage containing a bomb, so that his wife could collect on his life insurance. No probable cause for the crash was found. 42 6 January 1960 National Airlines Flight 2511 A Douglas DC-6 flying from New York to Miami exploded and crashed in North Carolina, killing all on board. Passenger Julian Frank, who was under investigation for running a charity fraud and was heavily insured, is suspected of detonating a dynamite bomb. 34 10 May 1961 Air France Flight 406 A Lockheed L-1649 Starliner flying from Chad to France suffered an explosion and loss of tail control systems and crashed in Algeria, killing all on board. The explosion was believed to have been caused by a nitrocellulose-based bomb, possibly targeting officials of the Central African Republic. 78 22 May 1962 Continental Airlines Flight 11 A Boeing 707 exploded in the vicinity of Centerville, Iowa. Investigators determined that one of the passengers, Thomas G. Doty, had brought a bomb on board the aircraft after purchasing a life insurance policy. This was the first in-flight bombing of a jet airliner. 45; one died shortly after rescue 22 November 1966 Aden Airways crash at Wadi Rabtah A DC-3 registered VR-AAN crashed at Wadi Rabtah while en route to Aden, Yemen. Investigations determined that a bomb had been placed to kill Amir Mohammed bin Said, Prime Minister of Wahidi (now part of Yemen), by his son Ali who wanted to succeed him as Amir.[3] 30 12 October 1967 Cyprus Airways Flight 284 A de Havilland Comet owned by British European Airways was flying between Greece and Cyprus when it broke-up and crashed, killing everyone on board. The cause was not determined, but traces of a military plastic explosive were found on a seat cushion. It is believed a bomb was intended to assassinate the Greek general in command of the Cyprus army who was to be aboard, but cancelled shortly before departure. 66 21 February 1970 Swissair Flight 330 A Convair CV-990 departing Zürich suffered an explosion, cabin smoke and loss of electrical power, and crashed, killing all aboard. Investigators determined that a barometric-triggered bomb had detonated in the aft cargo compartment. The Popular Front for the Liberation of Palestine – General Command, claimed responsibility, but Reuters later reported that the group denied involvement.[4] On the same day, a bomb exploded aboard a Caravelle after takeoff from Frankfurt; this plane landed safely. 47 21 April 1970 Philippine Airlines Flight 215 A domestic Philippines flight of a Hawker Siddeley 748 broke-up and crashed, killing all on board. Investigators determined that a bomb in the lavatory exploded and separated the tail section from the aircraft. 36 24 April 1973 April 1973 Aeroflot hijacking An Aeroflot Tu-104 had departed Leningrad when a hijacking attempt occurred. A flight attendant tried to disarm the hijacker whose bomb detonated, killing both and causing decompression of the cabin. The crew made an emergency landing in Leningrad.[5] 2 18 May 1973 May 1973 Aeroflot hijacking An Aeroflot Tu-104 flying from Irkutsk to Chita was hijacked and demanded to be flown to China. The hijacker’s bomb detonated and the airliner crashed near Lake Baikal, killing all on board.[6] 82 8 September 1974 TWA Flight 841 (1974) A Boeing 707 crashed into the Ionian Sea after takeoff from Athens, killing all aboard. Investigators determined that a bomb in the cargo hold caused structural and control system failures, and the plane stalled and crashed.[7] 88 6 October 1976 Cubana de Aviación Flight 455 A Douglas DC-8 suffered two bomb explosions shortly after takeoff from Barbados, causing a fire, de-pressurization, and ultimately the loss of control systems. The airliner crashed, killing all on board. CIA-linked anti-Castro Cuban exiles in Venezuela were convicted.[8] 73 1 January 1976 Middle East Airlines Flight 438 A bomb exploded in the forward cargo bay of a Boeing 720B en route from Beirut, Lebanon to Dubai. The airliner broke-up and crashed, killing all aboard. The bombers were never identified. Lebanon was enduring a civil war at the time. 81 12 December 1981 Aeronica YN-BXW Mexico City Airport bombing An Aeronica Boeing 727 was undergoing pre-departure checks at Mexico City Airport when a bomb exploded in the passenger cabin, tearing a hole in the fuselage. The bomb was timed to detonate in mid-flight, but because of a 50-minute delay it exploded just before 150 passengers were about to board.[9] 3 crew and 1 ground crew injured 11 August 1982 Pan Am Flight 830 A Boeing 747 en route from Tokyo to Honolulu was damaged by a bomb placed under a seat cushion. The damaged airliner was able to land safely in Honolulu. Mohammed Rashed, linked to the 15 May Organization, was convicted of murder in 1988 and later convicted by a 2006 US court. Abu Ibrahim was also indicted. 1 dead, 16 injured 23 September 1983 Gulf Air Flight 771 On approach to Abu Dhabi, a bomb exploded in the baggage compartment of a Boeing 737 which crashed in the desert, killing all on board. Most of the dead were Pakistani nationals. The bomb was apparently planted by the militant Palestinian Abu Nidal organization to convince Saudi Arabia to pay protection money. 112 23 June 1985 Air India Flight 182 and Tokyo airport bombing A Boeing 747 flying from Montreal to London suffered an explosion in the forward cargo hold, causing rapid decompression and the break-up of the aircraft. It was the deadliest aircraft bombing with 329 killed, and the largest mass murder in Canadian history. A second bomb intended for Air India Flight 301 exploded at the Tokyo airport killing two baggage handlers and injuring four others; this was the first plot to target two planes at the same time. Initial suspect Talwinder Singh Parmar confessed that Lakhbir Singh Rode, leader of the Sikh separatist organization International Sikh Youth Federation (ISYF), was the mastermind.[10] 329 and 2 2 April 1986 TWA Flight 840 (1986) A Boeing 727 flying from Rome to Athens suffered an explosion in the passenger compartment. Four passengers (including an infant) were blown out a hole in the fuselage. The airliner was able to make an emergency landing. The “Arab Revolutionary Cells” claimed responsibility in retaliation for “American arrogance” and clashes with Libya. The bomb contained one pound of plastic explosive, probably placed under a seat by a Lebanese woman who worked for the Abu Nidal Organisation. 4 dead, 7 injured 25 December 1986 Iraqi Airways Flight 163 A Boeing 737 flying from Baghdad to Jordan was hijacked by four men. Airline personnel tried to intervene but a hand grenade was detonated in the passenger cabin, forcing an emergency descent. A second grenade exploded in the cockpit, and the aircraft crashed and caught fire, killing 63 of 106 people on board. “Islamic Jihad” (a name used for Hezbollah) claimed responsibility, and Iraq accused Iran of being behind the attack. 63 29 November 1987 Korean Air Flight 858 A Boeing 707 flying from Abu Dhabi to Bangkok exploded, killing all on board. The bomb used liquid explosives concealed as liquor bottles and was planted by North Korean agents. One of the agents, Kim Hyon-hui, survived taking a cyanide capsule and later confessed to the bombing. She was sentenced to death but pardoned as it was believed she had been brainwashed. 115 21 December 1988 Pan Am Flight 103 A Boeing 747 flying from Frankfurt to London was destroyed by a bomb, killing all on board and 11 people on the ground when large sections of the aircraft crashed onto residential areas of Lockerbie, Scotland. The bomb was made from PETN and RDX high explosives concealed in a radio cassette player. Libyan intelligence officer Abdelbaset al-Megrahi was convicted in connection with the bombing. 270 (including 11 on the ground) 19 September 1989 UTA Flight 772 A McDonnell Douglas DC-10 flying from Chad to France broke-up and crashed in Niger, killing all aboard. A bomb in the forward cargo hold caused the airliner’s destruction. The confession of a Congolese opposition figure resulted in charges against six Libyans, including Deputy Head of Libyan Intelligence Abdullah Senussi, brother-in-law of Muammar al-Gaddafi. Libya refused to extradite the accused, but subsequently recognized its responsibility by compensating the families of the victims. The deemed motive of the bomber was revenge against the French for supporting Chad in the Chadian–Libyan conflict. 170 27 November 1989 Avianca Flight 203 A domestic Colombian flight of a Boeing 727 suffered an explosion at 13,000 feet, 5 minutes after takeoff from Bogota. A bomb placed near an empty fuel tank exploded, igniting fuel vapors with a blast that ripped the aircraft apart, killing 107 people aboard and another 3 from falling debris. The bombing was planned by Pablo Escobar to assassinate presidential candidate César Gaviria Trujillo, but Trujillo was not on the flight. 110 (including 3 on the ground) 11 December 1994 Philippine Airlines Flight 434 A Boeing 747 flying from Cebu, Philippines to Tokyo was seriously damaged by a liquid-explosive bomb which killed one passenger. Although vital control systems were damaged, pilots were able to safely land the airliner an hour later. The bomb was assembled and planted for al-Qaeda by Ramzi Yousef, as a test for planned bombings of the Bojinka plot. 1 dead, 10 injured 21–22 January 1995 (planned) Bojinka plot (failed) A failed al-Qaeda plot to destroy several airliners over the Pacific Ocean using liquid explosives. The conspirators were discovered before they could carry out the plot. 0 22 December 2001 2001 failed shoe bomb attempt Al-Qaeda operative Richard Reid was subdued by passengers of American Airlines Flight 63, flying from Paris to Miami, after unsuccessfully attempting to detonate plastic explosives concealed in his shoes. 0 7 May 2002 China Northern Flight 6136 A McDonnell Douglas MD-80 nearing its destination of Dalian, China, reported fire in the cabin and requested an emergency landing before crashing. The investigation determined that passenger Zhang Pilin used gasoline to set fire to the cabin after purchasing several life insurance policies. Zhang and most passengers died from carbon monoxide inhalation; none survived the crash. 112 24 August 2004 Volga-AviaExpress Flight 1353 and Siberia Airlines Flight 1047 Two domestic Russian passenger flights departing Moscow, a Tu-134 and a Tu-154 airliner, crashed within minutes of each other, with no survivors. The Siberia Airlines flight broadcast a hijack warning shortly before disappearing from radar. An investigation found traces of RDX high explosive at both crashes, and determined Chechen suicide bombers to be responsible. Chechen separatist Shamil Salmanovich Basayev claimed responsibility. 44 and 46 9 August 2006 2006 transatlantic aircraft plot A failed al-Qaeda terrorist plot to detonate liquid explosives on airliners travelling from the United Kingdom to the United States and Canada. 0 25 December 2009 Northwest Airlines Flight 253 An Airbus A330 flying from Amsterdam to Detroit was the target of a failed al-Qaeda bombing attempt. Umar Farouk Abdulmutallab unsuccessfully attempted to detonate plastic explosives concealed in his underwear. 0 29 October 2010 Cargo planes bomb plot A failed al-Qaeda plastic-explosive bombing attempt on a UPS and a FedEx cargo plane bound to the United States. The bombs, concealed in packages originating in Yemen, were discovered at stop-overs a result of shared intelligence. It is believed the bombs were intended to be detonated over a US city.[11] 0 31 October 2015 Metrojet Flight 9268 An Airbus A321 flying from Egypt to Saint Petersburg broke-up above the Sinai, killing everyone on board, becoming the deadliest air disaster in Russian history. ISIL claimed responsibility. Russian investigators found explosive residue and Egyptian authorities agreed it was a terrorist act.[12] 224 2 February 2016 Daallo Airlines Flight 159 An Airbus A321 suffered an explosion shortly after taking off from Mogadishu, opening a hole in the fuselage through which the burnt body of the suicide bomber fell. The airliner was able to safely conduct an emergency landing. Militant group Al-Shabaab claimed responsibility. 1 (the bomber), 2 injured