Federal Court: Suspicionless Search of Traveler Devices by Border Agents Is Unconstitutional

U.S. Customs agents now must have reasonable cause and suspicion to search traveler devices at points of entry.

In a win for the privacy of international travelers, a federal court in Boston has ruled that searchers of traveler electronic devices by border agents without suspicion is unconstitutional.

The ruling from the U.S. District Court, District of Massachusetts came in a 2017 case,  Alasaad v. Nielsen, filed by the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF), and ACLU of Massachusetts. The suit was filed on behalf of 11 travelers who had their smartphones and laptops searched without individualized suspicion at U.S. ports of entry.

“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF Senior Staff Attorney.
Since 2009, U.S. border agents were legally allowed to search electronic devices of travelers at borders without any specific cause or suspicion on the basis of protecting borders and enforcing border security.

In 2016, that law was revised to require “reasonable suspicion” for anything beyond basic searches, which still allowed agents to require travelers to unlock phones and gave them free rein to read messages and other basic information.

In fact, in the last few years, device searches were on the rise. In 2017, for example, border agents conducted 30,200 of these searches, according to U.S. Customs and Border Protection (CBP). That number was four times more than three years before that, according to the EFF.

These searches exhibited not only an invasion of privacy but also sometimes showed agents abusing their power, according to the EFF. An agent searching the phone of Zainab Merchant, a plaintiff in the Alasaad case, knowingly read privileged attorney-client communications, according to the foundation.

One incoming Harvard freshman even had his visa revoked and was deported after an immigration officer at Boston Logan Airport searched his devices and found that his friends had made social media postings expressing views critical of the U.S. government, according to a published report.

Digital privacy advocates took to Twitter to praise the court’s decision. “This is a big win!” Tweeted Demand Progress, a nonpartisan organization that promotes citizens’ rights in modern democracy.

“Even though the border is a ‘legal grey area’ where our rights as US residents can simultaneously begin and end, border agents now can’t search phones or laptops without at least suspecting a crime,” the organization said.

Famous National Security Agency (NSA) whistleblower and U.S. dissident Edward Snowden also weighed in on the decision, thanking the ACLU and EFF on Twitter for helping protect the privacy of travelers.

Snowden himself in 2013 had his U.S. passport taken by border agents at the Moscow airport. He was forced to live at the airport for 40 days before eventually being given asylum in Russia, where he still resides.

“By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel,” Snowden Tweeted.

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