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Federal court rules warrantless searches on travelers’ phones, laptops unconstitutional

CBP Preclearance Operations at Vancouver International Airport. CBP officer scans a passengers electronic ticket from her cell phone. (Donna Burton/CBP)
November 14, 2019

A federal court in Boston ruled on Tuesday that warrantless searches of travelers’ phones and laptops at ports of entry into the country violate the Fourth Amendment.

The ruling came from the 2017 lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) after 11 travelers, including Ghassan and Nadia Alasaad, had their smartphones and laptops searched when they entered the country, the Associated Press reported.

Immigration officials maintain the searches are a key protection tool.

Department of Homeland Security officials said when the lawsuit was filed that, unless exempted by diplomatic status, U.S. citizens and non-U.S. citizens are subject to examination and search by customs officials.

Of the more than 414 million travelers at U.S. ports of entry in Fiscal Year 2019 that the department processed, 40,913, or .01 percent, border searches of electronic devices were conducted. According to court documents, that percentage was .o7 percent in Fiscal Year 2017.

Additionally, searches, including some random, have uncovered evidence of terrorism, child pornography, human trafficking, visa fraud, export control breaches and intellectual property rights violations, according to the department.

Nadia Alasaad objected to having her phone inspected by ICE officials because she had pictures of herself without her headscarf on, which is a religious obligation of hers, and demanded a female officer review her phone, because she didn’t want a male officer to see them. Eventually, she agreed to let a male officer inspect her phone.

U.S. District Judge Denise J. Casper said Immigration and Customs Enforcement and Customs and Border Control agents must be able to point to “specific and articulable facts for reasonable suspicion” that the devices contain contraband to perform searches.

The ACLU attorneys said the ruling is a victory for securing constitutional protections for travelers. Ten of the 11 plaintiffs were U.S. citizens.

“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” said staff attorney with the ACLU’s Speech, Privacy, and Technology Project Esha Bhandari. “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.”

“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 EFF Senior Staff Attorney Sophia Cope.