A federal lawsuit was filed on Wednesday, September 13 2017, in Boston, Massachusetts, claiming that the U.S, government's practice of searching electronic devices at the border is unconstitutional considering that laptops and cellphones contain private personal and business information. The government has defended these searches, saying that they are critical to protecting the country.
The Fourth Amendment of the Constitution prevents unreasonable search and seizure, and requires that law enforcement agencies secure warrants based on probable cause. However, exceptions have been made for searches at U.S. ports of entry and airports. The courts ruled that warrantless searches at the border were allowed so as to enforce the immigration and customs laws, and protect national security.
Both the Electronic Frontier Foundation and the American Civil Liberties Union argue that searches should not be carried out without a warrant. They filed the lawsuit which names top officials at the Department of Homeland Security, Customs and Border Protection, and Immigration and Customs Enforcement on behalf of ten American citizens and a lawful permanent resident from seven states. The plaintiffs have varied backgrounds and employment, including two students, two journalists, an artist, a limousine driver, a filmmaker, a computer programmer, a college professor, a business owner, and an engineer for NASA's Jet Propulsion Laboratory.
All had their devices searched by border agents after returning from trips abroad. None had ever been accused of any wrongdoing. Despite this, border officials searched, or confiscated their devices, keeping them for weeks or months. One plaintiff has still not had the device returned, after it had been confiscated in January 2017.
DHS has yet to comment on the lawsuit. The government has said previously that these searches were rare. However, it seems as though they are becoming more frequent.
In 2015, Customs and Border Protection searched the devices of 8,503 international travelers. In 2016, the figure rose to 19,033 travelers. In the first half of 2017, the number of searches totaled 14,993.
Sophia Cope, an attorney for the Electronic Frontier Foundation, said that since people store so much personal information on their devices, and it is reasonable that they would want to take the device with them when they travel, “it's high time that the court require the government to stop treating the border as a place where they can end-run the Constitution.” ACLU attorney Esha Bhandari said, “the government cannot use the border as a dragnet to search through our private data.”
DHS officials have asserted that only those with diplomatic status are exempt from examination and search by customs officials. They also said that no court has ever concluded that a warrant is required for a border search of electronic devices. The department states that these searches, including random searches have uncovered evidence of crimes, such as terrorism, child pornography, human trafficking, visa fraud, intellectual property rights violations and export control breaches.