At the border and in international airports, ICE and the Customs and Border Protection service have been routinely rifling through people’s computers and smart phones. Away from the border, law enforcement needs a warrant before it can search your phone or another electronic device. So why have border agents assumed they didn’t need one?
The ACLU and the Electronic Frontier Foundation sued on behalf of 11 international travelers who had had their devices searched at the border without a warrant. In their defense, the border agencies claimed that their “paramount” interest in protecting the border gave them wide latitude in routine searches.
The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures by government agents, and it still applies at the border, a federal judge ruled in the case.
The judge recognized that the border agencies do have a “paramount” interest in protecting the border, that interest does not completely defeat all Fourth Amendment concerns. Among those concerns is the privacy of innocent travelers in the information contained in their phones and computers.
Therefore, she ruled that the policies by ICE and the CPB allowing routine searches of electronic devices are unconstitutional.
Border agents will need cause, but not a warrant
The judge did not rule, however, that border agents need warrants before they can search electronic devices at the border. She recognized that there are security concerns at the border that do not exist elsewhere in society.
Therefore, the judge ruled that border agents need “reasonable suspicion” before they can search your phone or computer. Reasonable suspicion must be both reasonable and articulable, meaning that a law enforcement agent must be able to point to objective facts that imply the person could be involved in criminal activity. Suspicion is not reasonable when it is based on a mere hunch or on racial profiling, for example.
That’s important because minorities and others could be unfairly targeted by searches unless there are standards in place to prevent that. Several of the plaintiffs in the case are religious or ethnic minorities, along with journalists and people who might have been carrying protected information in their phones or computers.
“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,” said one of the ACLU attorneys.
You should be aware that the number of electronic device searches at the border has ballooned in the last few years under the Trump administration. According to the ACLU, in 2015 there were approximately 8,500 border searches of electronic devices. Last year, there were over 30,000.