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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

Related Reading

(Photo Credit: erhui1979 / iStockphoto)

Countable

Written by Countable

Leave a comment
(716)
  • Karen
    09/18/2017
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    Our Constitution is clear on this point: search and seizure without a warrant is a constitutional violation. Constitutional rights extend to all US citizens and foreign guests on our soil. Yes, really. Read the Constitution.

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  • Tim
    09/18/2017
    ···

    Our Constitution is clear on this point: search and seizure without a warrant is a constitutional violation. Constitutional rights extend to all US citizens and foreign guests on our soil. Read it. It's in the Constitution.

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  • Sharon
    09/18/2017
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    Absolutely not! Warrantless searches are a violation of the Constitution. On the one hand, arguments for appointing Justices John Roberts and Neil Gorsuch were that activist judges stray too far from the Constitution whereas Roberts and Gorsuch are strict strictly and narrowly adherent to the Constitution which protects the Constitution. To support activities such as warrantless searches in direct violation of the Constitution suggests to me that the Constitution is now another tool for political advantage to be solemnly invoked when it's for political gain and nonchalantly ignored when it's not. Whether people are citizens or not, the Constitution honors innate human dignity and rights. What does it mean about us as a society when we claim those for ourselves, but not for others who were born elsewhere? Are we so special?

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  • Alexandra
    09/18/2017
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    No. Border patrol and TSA don't have the right to search our phones. Whatever happened to innocent until proven guilty? We are becoming a nation of citizens that are guilty in the eyes of law enforcement that must prove our innocence. That's not how this is supposed to work.

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  • Thomas
    09/18/2017
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    Border Patrol agents need to have a warrant to search a phone.

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  • Truly
    09/18/2017
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    This is blatantly unconstitutional. Stop taking away the rights of the people for the ability to violate privacy for your own gain. Are there any statistics to support this activity? How many terrorists have been stopped because of these violations?

    Like (70)
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  • Jamie
    09/18/2017
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    Border patrol should absolutely not be allowed to search anyone's phone without a warrant specifically allowing them to do so. That this is even an issue is ridiculous, and is a gross invasion of privacy.

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  • Phillip
    09/18/2017
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    Only if I can search theirs right after ;) screw that

    Like (46)
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  • Stephanie
    09/18/2017
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    To do this w/o a warrent is very extreme, bordering on ridiculous. Stop the fearmongering. We will not unendingly give up our rights.

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  • NQuiterio
    09/18/2017
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    Any non-citizen entering this country should be subject to any search at the gates (airports, borders, etc.) as they are not US citizens and the US Constitution does not apply to them. However, once they have been deemed safe to enter, they should no longer be allowed to be searched without a warrant as they are granted temporary constitutional rights. And any violation of our laws will result in political repercussions ranging from fines, if minor, to deportation (unless one chooses to become a citizen), if major.

    Like (24)
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  • Donelle
    09/18/2017
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    Warrants are required to get this information in the courts of the USA, so how does Border Security supersede this?

    Like (19)
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  • John
    09/18/2017
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    No. Constitution protects most when it is needed.

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  • Tabitha
    09/18/2017
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    No, right to privacy is a Constitutional right.

    Like (15)
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  • Gabriele
    09/18/2017
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    At the border, if you do not look the way the agent at the moment think you have to look like to be innocent, they treat you already like a criminal. This agents get a thrill out of their power and the more we give them, the more they like it! What would everyone think if every other country would treat you at the border like this too! Stripp you (at times) almost naked, search your electronic devices at will etc., we would stop traveling. Never and nowhere have I been treated on the border with this little respect as here in the USA where I am a citizen, and I am a senior citizen in a wheelchair. Keeping the country safe is most important, but this kind of things are purely power plays of little people they have otherwise nothing to say and that needs to change for our right of privacy!

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  • Robert
    09/18/2017
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    No, I mean HELL NO

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  • Katherine
    09/18/2017
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    1. I believe phones and electronic devices should only be searched with a warrant. 2. I also believe tracking an individual who is dangerous or who has been kidnapped via phone should have special fast-tracked warrant provisions. 3. Of the device belongs to an employer, then the warrant should include provision that employer/supervisors be notified

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  • Jason
    09/18/2017
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    I would ask that action be taken on this matter. Our freedom of speech, and our freedom from unreasonable search and seizure, are bedrocks of our Constitution. Just because someone is at a port of entry, why does that mean that their basic rights, long enumerated in our cherished Bill of Rights, should suddenly be ignored? As a US citizen, I should always retain those rights when on American soil, regardless as to where that soil is. Please work to rein in these unreasonable acts by CBP.

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  • Patty
    09/18/2017
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    These searches are unconstitutional, and if the stories are to be believed are being used as an absolute abuse of power. Border patrol should only be able to do this with a warrant.

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  • Marsha
    09/18/2017
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    No, our phones should not be searched without a warrant. This violates our 4th amendment. Our rights are being eroded by this administration and our republican congress, both state and federal.

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  • Sid
    09/18/2017
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    This should be a no-brainer. The fourth amendment doesn't have an exception for airports. God bless the ACLU.

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