We Got U.S. Border Officials to Testify Under Oath. Here’s What We Found Out.

In September 2017 we, along with the Electronic Frontier Foundation, sued the federal government for its warrantless and suspicionless searches of phones and laptops at airports and other U.S. ports of entry.

The government immediately tried to dismiss our case, arguing that the First and Fourth Amendments do not protect against such searches. But the court ruled that our clients — 10 U.S. citizens and one lawful permanent resident whose phones and laptops were searched while returning to the United States — could move forward with their claims. 

Since then, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have had to turn over documents and evidence about why and how they conduct warrantless and suspicionless searches of electronic devices at the border. And their officials have had to sit down with us to explain — under oath — their policies and practices governing such warrantless searches.

What we learned is alarming, and we’re now back in court with this new evidence asking the judge to skip trial altogether and rule for our clients.

The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws. The agencies’ policies allow officers to search devices for general law enforcement purposes, such as investigating and enforcing bankruptcy, environmental, and consumer protection laws. The agencies also say that they can search and seize devices for the purpose of compiling “risk assessments” or to advance pre-existing investigations. The policies even allow officers to consider requests from other government agencies to search specific travelers’ devices.

CBP and ICE also say they can search a traveler’s electronic devices to find information about someone else. That means they can search a U.S. citizen’s devices to probe whether that person’s family or friends may be undocumented; the devices of a journalist or scholar with foreign sources who may be of interest to the U.S. government; or the devices of a traveler who is the business partner or colleague of someone under investigation.

Both agencies allow officers to retain information from travelers’ electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies.

Let’s get one thing clear: The government cannot use the pretext of the “border” to make an end run around the Constitution.

The border is not a lawless place. CBP and ICE are not exempt from the Constitution. And the information on our phones and laptops is no less deserving of constitutional protections than, say, international mail or our homes.

Warrantless and suspicionless searches of our electronic devices at the border violate the Fourth Amendment, which protects us against unreasonable searches and seizures – including at the border. Border officers do have authority to search our belongings for contraband or illegal items, but mobile electronic devices are unlike any other item officers encounter at the border. For instance, they contain far more personal and revealing information than could be gleaned from a thorough search of a person’s home, which requires a warrant.

These searches also violate the First Amendment. People will self-censor and avoid expressing dissent if they know that returning to the United States means that border officers can read and retain what they say privately, or see what topics they searched online. Similarly, journalists will avoid reporting on issues that the U.S. government may have an interest in, or that may place them in contact with sensitive sources.

Our clients’ experiences demonstrate the intrusiveness of device searches at the border and the emotional toll they exact. For instance, Zainab Merchant and Nadia Alasaad both wear headscarves in public for religious reasons, and their smartphones contained photos of themselves without headscarves that they did not want border officers to see. Officers searched the phones nonetheless. On another occasion, a border officer searched Ms. Merchant’s phone even though she repeatedly told the officer that it contained attorney-client privileged communications. After repeated searches of his electronic devices, Isma’il Kushkush, a journalist, felt worried that he was being targeted because of his reporting, and he questioned whether to continue covering issues overseas.

Crossing the U.S. border shouldn’t mean facing the prospect of turning over years of emails, photos, location data, medical and financial information, browsing history, or other personal information on our mobile devices. That’s why we’re asking a federal court to rule that border agencies must do what any other law enforcement agency would have to do in order to search electronic devices: get a warrant.

View comments (132)
Read the Terms of Use

Anonymous

Let the police state continue. Just stay home while they continue to eliminate your rights and freedoms

Citizen again

In addition to sounding like you’re a shill for the federal gov’t, your response to the government trampling more freedoms enshrined in the bill of rights is “oh well.” The alternative is to live where you don’t have those rights. So...you’re moving?

Anonymous

Stay home is awful dvice to give. while crossing a border can be a hassle, it does not mean you should be subjected to constitutional violations. I have been subjected to a SSSS procedure trying to re-enter the United States. It felt like an absolute violation of my rights. In fact, I feel it was a total violation of my rights as an American citizen. TSA is just as complicit as the above mentioned agencies in this type of violation. This incredible overreach by these agencies is completely unacceptable and needs to be stopped.

Anonymous

You should definitely stay at home. We, on the other hand, demand safe travel and that our constitutional rights are not violated at the border.
"Anyone who is willing to lose liberty for a sense of security deserves neither and will lose both" - Benjamin Franklin. Browsing phones hasn't caught a single person - it's used to exercise power over the powerless travellers. If you are willing to give up your phone and having unla

Anonymous

Worst comment ever. Death of the constitution and you say stay home and watch tv. Shame on you.

Anonymous

Apathy is a cancer that lets these kinds of things grow. Stay at home...c'mon lady.

C Williams

This is for people returning to their own country. When you travel to another country you have to respect and follow their rules. One of the rules of the US is that its citizens are supposed to be protected by the constitution (which doesn't apply to non-citizens). In this case it's people who should have been protected by their own countries laws. People who were returning "home". The 1st and 4th should apply here for the same reason a cop shouldn't be able to break down your door and confiscate everything in your house that he wants to.

Anonymous

While I understand where your sentiment comes from, it is just not possible. I fear you are looking through a keyhole and refuse to look around and see the bigger picture.

Anonymous

I'm inclined to agree here. I mean border security is a huge issue. Now while Trumps national emergency may be a farce, there are very real threats out there and let's face it, the middle East is still a war torn mess that's slowly spreading world wide. We already have hate attacks in New Zealand and Sri Lanka and 9/11 was a thing too. Now while it may violate privacy, I believe that if these searches are able to in some way prevent tragedies like those listed above or worse then it's worth sacrificing privacy. The world isn't as safe as we once knew it and as technology grows so do the various ways to attack and infiltrate to commit hate crimes and terrorist acts. I believe that so long as these searches are carried out in a respectful manner then there really isn't an issue. What should be discussed isn't if it violates our rights but what is gained from such an act and why it is being conducted and how to go about it in a manner that isn't so intrusive or disrespectful. If the government can give us that then isn't it worth it to sacrifice privacy if it truly helps protect our borders? We shouldn't be demanding for them to cease and desist but rather to come forward and explain themselves for choosing the methods they have adopted and how it is they have helped protect America. And if those reasons aren't good enough then we should take action. We shouldn't take action simply because we feel it's wrong or we don't like it. We should try and understand the why behind it and see if it really is good for our country to take these measures. That's my opinion anyways. Many will disagree but all I'm asking for is for those who do to take the time to really ask themselves whether or not this type of action is necessary given the state of things both inside and outside of America and if not then what would you have be done instead. It's not enough to voice dissatisfaction, we need to voice a solution too.

Anonymous

Leave your phone at home? That's your solution?

Pages

Stay Informed