Warrantless Border Searches of Smartphones Are Skyrocketing. We’re Suing to Stop Them.

Plaintiffs in Alasaad v. Duke. Top row, from left: Aaron Gach, Nadia and Ghassan Alasaad, Diane Maye, Jeremy Dupin. Bottom row, from left: Matt Wright, Akram Shibly, Sidd Bikkannavar, Suhaib Allababidi, and Zainab Merchant.

Warrantless searches of smartphones, laptops, and other electronic devices at the border are a major threat to privacy and civil liberties. Today, the ACLU, along with the Electronic Frontier Foundation and the ACLU of Massachusetts, filed a lawsuit challenging such searches as unconstitutional. The border should not serve as a dragnet for law enforcement to pry into our personal and professional lives.

We represent 10 U.S. citizens and one green card holder from a variety of backgrounds: a military veteran, journalists, students, an artist, an engineer, a limousine driver, and a business owner. All of them had their rights violated when border officials searched their smartphones or other electronic devices when they were returning from travel abroad. Officials also confiscated and held several of our clients’ devices for weeks or months.

None of our clients have been accused of any wrongdoing, nor have they been given any valid explanation for why this happened to them.

Learn more about the plaintiffs in Alasaad v. Duke

The government says it can search our devices for no reason at all, without a warrant or any suspicion whatsoever that a person has violated immigration or customs laws. Under separate policies that date from 2009 — when the smartphone era was still in its infancy — officers with U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement can probe the contents of your smartphone for hours while you wait. They also have the option of downloading and saving all of the data on your phone for later review. They can even confiscate your phone for a thorough “forensic” search at another location, only to return it to you weeks or months later, as happened to our client Matt Wright. One of our clients, Suhaib Allababidi, still hasn’t received his smartphone from CBP after seven months.

The frequency of device searches at the border has spiked recently. According to CBP data, the number of searches grew from 8,503 in fiscal year 2015 to 19,033 in 2016 — an increase of almost 125 percent. And officers have already carried out nearly 15,000 searches in the first half of fiscal year 2017, putting CBP on pace to conduct about 30,000 searches for the year.

It should go without saying that searches of smartphones, tablets, and laptops can be incredibly intrusive. Our phones have become blueprints for our entire lives. They contain massive amounts of sensitive and personal information, including much of our written communications, contact lists, location data, and photos and videos portraying the most intimate aspects of our relationships. For most of us, a search of our phones would be far more revealing than a thorough search of our homes. With access to all that data, the government could assemble a tableau of our lives so detailed and comprehensive as to leave very little private.

Many travelers also have especially sensitive content on their phones, such as medical information or privileged attorney-client communications. Two of our clients, Jeremy Dupin and Isma’il Kushkush, are journalists whose phones contained confidential source information. Sidd Bikkannavar carried a phone that was the property of his employer, NASA’s Jet Propulsion Laboratory. Nadia Alasaad and Zainab Merchant, both of whom wear headscarves in public in accordance with their religious beliefs, had photos on their phones that showed them without their headscarves — photos that they felt very strongly should not be viewed by CBP officers.

In carrying out device searches, border officials take advantage of the fact that travelers have no meaningful way to resist or contest the searches. If travelers decline to disclose the passwords to their devices, officers threaten to detain the travelers for longer periods or confiscate the devices.

When an officer directed Ghassan and Nadia Alasaad to reveal the password to Nadia’s phone, they had already been detained for five hours and were desperate to attend to their daughter, who was ill and whose condition was worsening while they waited in the border station. When Akram Shibly refused to turn over his phone, which CBP officers had searched during another border crossing only days earlier, officers responded with physical force. One officer grabbed Akram’s neck and began to choke him, while another held his arms and legs. A third officer then reached into his pocket and took the phone.

The personal toll that these searches can exact is profound. Diane Maye, an Air Force veteran and professor of homeland security and global conflict studies, describes feeling humiliated and violated as CBP officers searched her phone while she waited in an interrogation room, wondering if they were looking at her personal texts and photos.

This kind of arbitrary intrusion into people’s lives isn’t just outrageous, unnecessary, illogical, and wasteful. It’s also unconstitutional, in violation of both the First and Fourth Amendments.

The Fourth Amendment protects us against unreasonable searches and seizures — including at the border. To be sure, border officers can stop travelers and search their belongings even if they don’t suspect the travelers of wrongdoing, but mobile electronic devices differ fundamentally from luggage. The Supreme Court recognized as much in a 2014 case involving police searches of the smartphones of people under arrest. Noting the amount and variety of data accessible on such devices, the court had a simple answer for what police must do before searching phones after an arrest: “get a warrant.”

We’ve long argued that the same logic applies to device searches at the border. If officers have good reason to believe that a device contains contraband or evidence of a crime, they can ask a judge to issue a warrant based on probable cause.

Strong protections are also crucial to avoid chilling the exercise of First Amendment rights. If people crossing back into the country know government agents can search through their phone on a whim and see their communications and associates, they will think twice about what they say and write.

A warrant requirement is also necessary to promote fairness. It’s clear that members of Muslim, Arab, Middle Eastern, and South Asian communities have been disproportionately targeted for abusive questioning, searches, and detention at the border. Requiring a warrant for device searches would help prevent racial and religious profiling by promoting transparency about whose devices the government is searching and why.

We do not forfeit our constitutional rights when we return to the United States from abroad. If government agents want to search a person’s electronic devices, they can ask a judge for a warrant. This is what the Constitution demands. Our clients understand this. They’re standing up for all of us, and we’re standing with them.

View comments (34)
Read the Terms of Use

Another Avg American

Average, face-to-face questioning still gives me, the questioned, control of what information is disseminated, and how it is used. Taking my phone out of my site, be it for 10 minutes or 10 months, and downloading the data...I don't know what is being accessed, with whom it is being shared or where it is being stored for potential future use. Until the courts catch up with technology and put a stop to this madness, my plan for when I travel abroad will simply be to wipe my phone clean, back everything up to a cloud server or local drive that can't be accessed at the border, and then restore everything when I get home. I also plan to avail myself of the trusted traveler programs that are available to me as a citizen, in the hopes to minimize my chances of selection.

Another Avg American

add to my above point also that a) presumably CBP officials have been given extensive training in data-mining techniques, where b) most Average Americans aren't tech savvy enough to know how to remove data from phones that could be potentially incriminating at worst, or really make things awkward if inconsistent with the answers you supply at best. I mean, I have 5+ years of emails and photos that my smartphone company has had backed up and pushes to me for access in the name of convenience. A lot changes for most people over 5 years - what if something is found?

Average American

Another Avg American, this still doesn't deal with the issue with physical searches, which is even worse because they can now steal your property, or at worse, plant evidence on you to set up for a fall. As for joining one of their Trusted Traveler programs, you trade away your privacy for hoping to avoid the extra screening, now they have even more dirt on you, and they didn't have to pry your smartphone from you. Who needs your smartphone when they already have your home and work address? All they have to do is pay somebody to follow you. You win some, you lose some.

CBP Trust Traveler Programs are great.. why waste time in line when you use that time to do other things besides "waiting in line"? Waiting in line is a waste of my time and money.. Nothing is accomplished waiting in line or getting zero miles per gallon.

Anonymous

What's strange about it, is you seem to be promoting the incorrect belief that because it hasn't happened to you, and you are not familiar with the victims backgrounds, it's no big deal that Constitutional rights are being massively violated, your implying that because your okay with it, we all should be, and because you don't know their background, the border officers have a valid suspicion and need to know which trumps personal liberties. I find you manipulative and suspicious, if not an ulterior motive then your just stupid.

Anonymous

I only hope that you are not implying that those who were subjected to illegal searches "had dometyto hide". I hope you are not trying to victimize the victims.

Anonymous

As one who grew up in the 1970's and 1980's, back then America's parents, teachers and leaders preached that the difference between American and our enemies, primarily communist regimes, was that we did NOT have an Iron Curtain, we didn't imprison people without a court's guilty verdict. The government couldn't search your home or personal effects without a judicial warrant from a court.

We were taught that nobody is above the constitutional rule of law, not even a president. We were taught that America had "checks & balances" amongst the three branches of government and an Independent Judiciary where any person could challenge in court any unjust or arbitrary law. We were taught that guilt-by-association was something our enemies did - not us.

In the 1970's and 1980's it was considered "unAmerican" and disloyal to American ideals to do what is happening today. Our parents, teachers and leaders called those that did this the "Evil Empire".

Anonymous

Guys its my personal opinion for all game lover please visit this freecell game website https://playfreecellonline.net .After visit you will be best feel online game world

Anonymous

Is there a way to report spam on these forums? Most other forums allow you to flag such but I'm not seeing anything like that with this one.

Anonymous

When are the Republicans in Congress going to implement the reccommedations of the 9/11 Commission? Why have an independent commission at taxpayer expense? Thought these guys were tough on terrorism.

Kandie

Teens and people of color are the number one--dare I say favored--folks, Law-Enforcement loves to stop 'Without Probable Cause'. Anyone contesting a simple ticket will need access to a Law Library in order to fight it in court. Knowing our basic Constitutional Rights, and voicing them when they're abused, might make Sr. Ticket think twice. Although camping-out at the Law Library has its ups, being fired for missing to much work, doesn't.

Pages

Stay Informed