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Should Border Patrol Be Allowed To Search Your Phone?

by Countable | 9.18.17

What’s the story?

U.S. Customs and Border Patrol (CBP) and Immigrations and Customs Enforcement (ICE) officers have, for years, been subjecting travelers at U.S. borders to warrantless searches of their cell phones, laptops, and other electronic devices. While the directives for these searches have been around since the George W. Bush administration, 2017 has seen, as Newsweek reported, "significantly increased rates over the past year."

Now, the American Civil Liberties Union (ACLU) and Electronic Freedom Foundation (EFF) are suing the government, claiming these searches violate the First and Fourth Amendment.

The Fourth Amendment prohibits unreasonable searches and seizures, and requires police and other law enforcement officials obtain warrants based on probable cause. Courts, however, have waived these rights at U.S. ports of entry and airports; as a DHS spokesman said, the warrantless searches "are often integral to a determination of an individual’s intentions upon entry."

But EFF attorney Sophia Cope argues, "It's high time that the courts require the government to stop treating the border as a place where they can end-run the Constitution."

Why does it matter?

As explained by Newsweek, the ACLU/EFF lawsuit "details the harrowing searches" of eleven plaintiffs, which were “conducted at U.S. international airports and the U.S.-Canadian border.” The plaintiffs include an artist, two journalists, a filmmaker, a college professor, a former Air Force captain, and an engineer at NASA’s Jet Propulsion Laboratory in California.

In the suit, the plaintiffs argue that their phones and laptops "contain massive amounts of personal information, including messages to loved ones, private photographs of family members, opinions and expressive material, and sensitive medical, legal, and financial info­rmation."

None of the plaintiffs had been accused of any wrongdoing prior to the warrantless search.

The ACLU and EFF maintain that

"because government scrutiny of electronic devices is an unprecedented invasion of personal privacy and a threat to freedom of speech…searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional."

But David Lapan, a spokesman for the Department of Homeland Security, said the searches are legal under federal law—and necessary to protect the country.

"Keeping America safe and enforcing our nation’s laws in an increasingly digital world depends on our ability to lawfully examine all materials entering the U.S.," Lapan said.

According to Lapan, in 2016 Customs and Border Patrol agents "processed more than 390 million arrivals and performed 23,877 electronic media searches."

But the lawsuit claims the "frequency of such searches has been increasing," with agents using “increasingly powerful and readily available forensic tools” which “amplify the intrusiveness and comprehensiveness of the searches.”

What do you think?

Are the warrantless searches necessary to determine "an individual’s intentions upon entry"? Or is it “high time that the courts require the government to stop treating the border as a place where they can end-run the Constitution”? Hit the Take Action button, tell you reps, then comment below.

—Josh Herman

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(Photo Credit: erhui1979 / iStockphoto)

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